The pendulum of the public mind': Insanity and activism in capital trials, 1880-1939

‘The pendulum of the public mind’: Insanity and activism in capital trials, 1880-1939 Georgina Rychner B.A. (Hons.): Monash University 2016 A thesis submitted for the degree of Doctor of Philosophy at Monash University in 2020 School of Philosophical, Historical and International Studies Copyright notice © Georgina Rychner (2020). I certify that I have made all reasonable efforts to secure copyright permissions for third-party content included in this thesis and have not knowingly added copyright content to my work without the owner's permission. Abstract This dissertation examines the way that medical ‘experts’ and non-experts—judges, jurors, the press and the broader public—employed narratives and understandings of insanity during a period in which notions of mental health were in flux. Through a focus on the criminal trial in the colony, and later, state of Victoria between 1880-1939, this dissertation explores the operation of capital punishment as a system that allowed for popular readings of madness in relation to serious interpersonal crimes. The system of capital punishment in the Australian colonies allowed for public activism during a two-week period between conviction and execution/commutation in which organisations, groups, families and individuals could submit letters, petitions or deputations to the Premier in support or condemnation of particular prisoners on a case-by-case basis. This dissertation maps the uneven activism deployed in these cases. Insanity was increasingly used by ordinary people as a discursive tool by which to contest the death penalty, and in some cases, a means by which to protest the material circumstances that governed their lives, conditions they viewed as having led offenders to commit crimes of desperation. This research draws upon a dataset of 215 convicted trials to examine trials of murder and sexual assault at the Melbourne Supreme Court and assizes between 1880 and 1939. The dataset reveals general trends in crime prevalence, leniency and mental impairment defences that provides the ‘bigger picture’ of the subject matter that is used to contextualise specific case studies. This study is primarily a qualitative analysis of selected criminal trials within the sample that aims to uncover doctors’, lawyers’ and laypersons’ interactions with the new and evolving ‘science’ of psychiatry in the context of crime and criminal responsibility. The latenineteenth century the criminal courtroom became a site of contested knowledge regarding mental states, witnessing insanity claims voiced by doctors, lawyers, judges and everyday people that were inextricably linked to ideas regarding criminality, gender, race and class. The broad-ranging representations of offenders are examined within a post-structural theoretical framework, in particular the ways in which gender informed judgments regarding mental states and culpability. Chapter One outlines the operation of the criminal justice system, the origins of the field of psychiatry and the popular culture around crime that existed in the colony during the late-nineteenth century in order to contextualise the case studies that follow. Chapter Two examines how constructions of femininity heavily impacted upon trials of women who killed infants. Chapter Three investigates how insanity claims presented in trials for male-perpetrated intimate partner homicides were informed by middle-class visions for respectable masculinity between 1880 and 1914. Chapter Four considers the sizable historiography of women who committed murder (excluding infanticide) in Australia, and examines factors of femininity and class in putting forward a more nuanced and historically-grounded approach to the history of women who killed partners between 1880 and 1939. Chapter Five explores male-perpetrated intimate partner homicides between 1914 and 1939, demonstrating how factors such as service in the First World War, the economic depression and the circulation of psychoanalytic language affected constructions of masculinity and insanity at trial. Chapter Six demonstrates how contemporary understandings of sexuality, race and gender informed insanity claims in trials for sexual offences throughout the period, examining the three capital sexual offences of rape, buggery and carnal knowledge of a girl under ten alongside one another. Declaration This thesis contains no material that has been accepted for the award of any other degree or diploma at any university or equivalent institution and that, to the best of my knowledge and belief, this thesis contains no material previously published or written by another person, except where due reference is made in the text of the thesis. Signed Georgina Rychner 29 September 2020 Publications during enrolment Victoria Nagy and Georgina Rychner, ‘Longitudinal Analysis of Australian Filicide Perpetration Trends: Filicide in Victoria, 1860-1902’ International Journal for Crime, Justice and Social Democracy 9, 4 (2021). Advance online publication. https://doi.org/10.5204/ijcjsd.1642 Georgina Rychner, ‘Temporary Fits, Animal Passions: Insanity in Victorian Capital Trials, 1890-1935’ Health and History 20, 1 (2018): 28-51. Georgina Rychner, ‘Murderess or Madwoman? Margaret Heffernan, infanticide and insanity in colonial Victoria’ Lilith: A Feminist History Journal 23 (2017): 91-104. Acknowledgments There were many times when I was unsure whether I would complete this journey, and the existence of this complete thesis is a testament to the support and encouragement I have been lucky enough to receive over the past three years. My supervisors, Professor Christina Twomey and Assistant Professor Paula Michaels, have my sincere gratitude. As my primary supervisor, Christina guided this thesis and reassured me when I could not entirely envision the project as a cohesive whole. Paula provided invaluable feedback and meticulous editing in the later stages, for which I am most thankful. Associate Professor Julie Kalman, Dr Kate Murphy, Dr Ruth Morgan, Dr Agnieszka Sobocinsca, Associate Professor Michael Hau and Professor Alistair Thomson provided helpful comments on drafts at various stages of this project. This thesis has been enriched by the fantastic communities among historians of medicine and historians of crime in Australia. My most heartfelt thank you to my mentor and friend, Dr Vicky Nagy, whose academic projects, generosity to graduate students and general enthusiasm for life know no bounds and continue to inspire me. To another dear mentor, Dr Effie Karageorgos, for her steadfast support and friendship over the course of my degree. A warm thank you to Dr Alana Piper and Dr Lisa Durnian for their advice and excellent company at numerous academic conferences. This PhD would not have been possible without financial funding provided by the Australian Government through the Australian Postgraduate Scholarship scheme. This project benefitted from extra financial assistance provided by Monash University to attend a variety of academic conferences and, in particular, a generous grant from the Monash Arts Graduates School and the Women’s Studies and Gender Research Centre to attend the International Feminist Theory Workshop hosted at Duke University. Many thanks to Professor Mark Finnane and the team at the Prosecution Project for kindly sharing criminal trial data to supplement my own dataset. My sincere thanks to Professor Hans Pols and Professor Mark Micale, for organising and funding a transformative international workshop on the History of Psychiatry in 2018 that I was lucky enough to attend, and to Tom Richardson for organising and funding a fantastic conference on the Interwar Period that shaped my thesis considerably. The intellectual generosity from the academic community is too great to catalogue, but thank you to Cathy Coleborne, Jamie Dunk, Kate Fitzgibbon, Danielle Tyson and Caroline Ingram, who all generously made the time for intellectual exchange on key aspects of this thesis. There are too many wonderful people within the Monash postgraduate community to name individually, but my time on campus was made all the better thanks to them. My thanks to Toby Nash, Bernard Keo and Nick Ferns for their advice and friendship over the last three years. During this time, I could not have asked for more thoughtful or fun housemates than Hannah Skipworth, Aidan Kyval and Madeleine Weatherly. I am immensely grateful to Danielle Broadhurst, Hannah Viney and Nicola Ritchie for their friendship and support, particularly while I was completing this thesis in isolation during the pandemic. To Shalika Fernando, Keerthana Kuhunandan and Alice Lloyd, for always keeping me grounded. To my family and Nicky Harris, for always believing in me. And to David Longley, for always managing to make me laugh amidst the madness. Table of Contents Introduction .......................................................................................................................... 1 Chapter One ........................................................................................................................ 29 Chapter Two ....................................................................................................................... 54 Chapter Three ..................................................................................................................... 89 Chapter Four ..................................................................................................................... 131 Chapter Five ..................................................................................................................... 166 Chapter Six ....................................................................................................................... 206 Conclusion ........................................................................................................................ 239 Appendix .......................................................................................................................... 246 Bibliography ..................................................................................................................... 254 Table of Figures Figure 1. Photograph of Margaretta Williams, Herald 11 Oct 1928, 7, also printed in the Weekly Times 20 Oct 1928, 9. ............................................................................... 187 Figure 2. A contemporary cartoon depicting the New Woman at work. Reginald Walter Coulter, printed in The Bulletin 14 Nov 1928........................................................ 187 Figure 3. Local residents outside the courthouse at Leongatha on the day Sodeman was arrested for June Rushmer’s murder. Public Record Office of Victoria. ................ 198 Introduction This dissertation examines Australian public engagement with psychological concepts at a time when modern notions of mental ill health were taking shape around the world. Through a focus on the criminal trial in the state of Victoria between 1880-1939, it explores the ways that medical ‘experts’ and nonexperts—judges, jurors, the press and the broader public—employed narratives and understandings of insanity in capital trials. This was a period in which ideas about psychology and human behaviour were in flux. Various iterations of how the human mind could be understood crept into the courtroom, with the potential to influence the sentencing and treatment of offenders. Criminal trials, and capital trials for criminal interpersonal violence in particular, presented a crucible for ideas about insanity because they represented human behaviour in extremis. The system of capital punishment in the Australian colonies allowed for public activism during a two-week period between conviction and execution/commutation in which organisations, groups, families and individuals could submit letters, petitions or deputations to the premier in support or condemnation of particular prisoners on a case-bycase basis. This dissertation maps the uneven activism deployed in these cases. Insanity was increasingly used by ordinary people as a discursive tool by which to contest the death penalty, and in some cases, a means by which to protest the material circumstances that governed their lives, conditions they viewed as having led offenders to commit crimes of desperation. An examination of gender in the narratives constructed around crimes and criminals, particularly in the expression of ideas about ‘criminal insanity’, sits at the heart of the analysis. Historians have long characterised the fin de siècle and interwar periods as formative to the consolidation of gender relations in Australia. The most well-covered decade is that of the 1890s, when male nationalist writers and first-wave suffragists presented contrasting visions for a quintessential Australian culture and society. In the post-trial activism that took place in Victoria in the last two decades of the nineteenth century, expressions of identity, solidarity and sympathy for convicted offenders often ran along gendered lines. The public discourses surrounding high-profile trials 1 contained more than isolated commentary on certain offenders, and often bled into discussions around intimate relationships, marital rights, reproductive control and sexual behaviour. The extraordinarily rich contents of letters, petitions and press commentary around individual trials lends insight into both the personal and political dimensions of Australian life in the late-nineteenth and early-twentieth centuries. Histories of Madness In the past four decades, scholars of madness have turned their attention to the meanings ordinary people made of ‘mad’ acts and, in a similar vein, scholars of crime have increasingly lent an ear to the meanings ordinary people accorded to criminal acts. Through its focus on the criminal trial, this dissertation is an attempt to pull these dialogues, running parallel across the two fields of history of crime and history of psychiatry, together. An inquiry into the intersections of insanity and crime in the past sheds light on the ways that Victorian theories of hereditary insanity and human volition were made sense of and applied on the ground. In addition, these were not merely theoretical positions. The assertion of criminal insanity in capital trials had ramifications regarding the sentencing of convicted offenders, in some cases making the difference between execution and commutation, between ten years imprisonment and a free pardon. Beyond individual trials, constructions of criminal madness along gendered, racial and class lines shaped the public response to particular prisoner demographics, casting a mould that directed the treatment or sentencing of subsequent offenders. Histories of madness, long situated within the institution, have in recent years looked beyond the lunatic asylum to investigate understandings of insanity as a product of public and medical exchange.1 Traditionally conceived as a top-down inquiry concerning doctors and their patients, asylum 1 Catherine Coleborne, Insanity, Identity and Empire: Immigrants and Institutional Confinement in Australia and New Zealand, 1873-1910 (Manchester: Manchester University Press, 2016). See also Catharine Coleborne, 'Making 'Mad' Populations in Settler Colonies: The Work of Law and Medicine in the Creation of the Colonial Asylum,’ in Law, History, Colonials: The Reach of Empire, eds. Diane Kirkby and Catharine Coleborne (Manchester: Manchester University Press, 2001), 106-122; Catharine Coleborne, ‘Families, Patients and Emotions: Asylums for the Insane in Colonial Australia and New Zealand, c. 1880-1910,’ Social History of Medicine 19, no. 3 (2006): 425–42; ‘Families, Insanity and the Psychiatric Institution in Australia and New 2 studies encompassed institutional monographs, medical biography and, with the anti-psychiatry movement and the linguistic turn, histories of institutional control.2 Roy Porter was among the first to suggest a history of madness ‘from below’ that took into account how patients themselves helped to shape the medical meanings that were made of them.3 Histories of medicine and psychiatry have since examined the culture and everyday influences that permeated asylum walls. This was evident in the colonial asylum system, where early institutions represented attempts to assert colonial governance over disorderly patient populations.4 In grounding the ‘microworld of the asylum… in the wider macrostructures of the nineteenth-century social world’, the systematic categorisation and recording of biological markers such as height, skin tone and facial features in asylum case books have long been identified as just one facet of the broad-ranging bureaucracy of Empire.5 Zealand, 1860-1914,’ Health and History 11, no. 1 (2009): 65–82; Angela Hawk, 'Going 'Mad' in Gold Country: Migrant Populations and the Problem of Containment in Pacific Mining Boom Regions,' Pacific Historical Review 80, 1 (2011): 64-96; James Dunk, ‘Work, paperwork and the imaginary Tarban Creek Lunatic Asylum, 1846,’ Rethinking History 22, 3 (2018): 326-355. 2 Jillian Fay Giese, The Maddest Place on Earth (North Melbourne: Australian Scholarly Publishing, 2018); “Noisy, restless and incoherent’: Puerperal insanity at Dundee Lunatic Asylum,’ History of Psychiatry 28, 1 (2017): 44-57; Toby Raeburn, Carol Liston, Jarrad Hickmott and Michelle Cleary, ‘Liverpool ‘lunatic asylum’: A forgotten chapter in the history of Australian health care,’ Collegian 25, 3 (2018): 347-353; Rory Du Plessis, ‘Beyond a clinical narrative: Casebook photographs from the Grahamstown Lunatic Asylum, c. 1890s’ Critical Arts 29, 1 (2015): 88-103; Sarah Pinto, Lunatic Asylums in colonial Bombay: Shackled bodies, unchained minds (Melbourne: Palgrave Macmillan, 2018); Wendy Gonaver, The peculiar institution and the making of modern psychiatry, 1840-1880 (Chapel Hill: University of North Carolina Press, 2018); Ris Mindham, ‘The Glasgow Asylum of 1810: Psychiatry in pictures,’ The British Journal of Psychiatry 214, 5 (2019): 314-341; Jade Shepherd, ‘I am very glad and cheered when I hear the flute’: The treatment of criminal lunatics in late Victorian Broadmoor,’ Medical History 60, 4 (2016): 473-491. 3 Roy Porter, ‘The patient’s view: Doing medical history from below,’ Theory and Society 14, 2 (1985): 175-98. 4 See Catharine Coleborne, Insanity, Identity and Empire: Immigrants and Institutional Confinement in Australia and New Zealand, 1873-1910 (Manchester: Manchester University Press, 2015). 5 Thomas Brown, ‘Dance of the Dialectic? Some reflections (polemic or otherwise) on the present state of nineteenth century asylum studies,’ Canadian Bulletin of Medical History 11 (1994): 282. On histories of the asylum in the colonial context, see: David Arnold, Colonizing the Body: State Medicine and Epidemic Disease in Nineteenth-Century India (Berkeley: University of California Press, 1993); Megan Vaughan, Curing Their Ills: Colonial Power and African Illness (Palo Alto, CA: Stanford University Press, 1991); Ellen Amster, Medicine and the Saints: Science, Islam, and the Colonial Encounter in Morocco, 1877-1956 (Austin: University of Texas Press, 2014); Richard Keller, Colonial Madness: Psychiatry in French North Africa (Chicago: University of Chicago Press, 2007); P. M. E. Lorcin, 'Imperialism, Colonial Identity and Race in Algeria, 1830-1870: The Role of the French Medical Corps,' Isis 90, 4 (1999): 653-67; Jennifer Lambe, Madhouse: Psychiatry and Politics in Cuban History (Chapel Hill: University of North Carolina Press, 2017); Lynda Crowley-Cyr, ‘The Incarceration Archipelago of Lunacy ‘Reform’ Enterprises: An Epochal Overview,’ James Cook University Law Review 12 (2005): 33. 3 The recasting of the relationship between asylum and colonial populations as one of a more complex co-dependence is a relatively recent turn in the historical literature. Cultural histories have reoriented their focus to the confluence of lay and medical readings in the space of the asylum, manifested through an intricate web of social relations. Integral to this reorientation is the identification of the role that everyday people, particularly family members, played in the asylum process, often rendering the colonial institution as an ‘arbiter of social and familial conflict’.6 Family members were often active in the process of institutionalisation, particularly in the initial identification of madness and the process of committal. In increasingly crowded facilities, doctors were reliant on communication with families and their eventual facilitation of a patient’s release.7 In the pressure they exerted in letters to doctors, family members unsettled the traditional power dynamic that historians identified as operating between medical men and asylum patients. Examination of the committal process prompted further questions regarding the shaping of medical knowledge and praxis: to what extent did medical knowledge inform cultural beliefs around madness, and to what extent did it build upon them? A near impossible question to answer, scholars have settled for a process of symbiosis. Nineteenth-century medical diagnosis was both a product of cultural beliefs around insanity and a yearning to refine those beliefs into an empirical science.8 6 Mark Finnane, ‘The ruly and unruly: Isolation and inclusion in the management of the insane,’ in Isolation: Places and Practices of Exclusion, eds. Alison Bashford and Carolyn Strange (Routledge, 2003), 93-108; Catharine Coleborne, ‘His brain was wrong, his mind astray: Families and the language of insanity in New South Wales, Queensland and New Zealand, 1880s-1910,’ Journal of Family History 31, 1 (2006): 45-65; Catharine Coleborne, Madness in the family: Insanity and institutions in the Australasian colonial world, 18601914 (Springer, 2009); Catherine Coleborne, ‘Challenging Institutional Hegemony: Family visitors to hospitals for the insane in Australia and New Zealand, 1880s-1910s,’ in Permeable Walls: Historical Perspectives on Hospital and Asylum Visiting, ed. Clio Medica (Clio Medica online, 2009), 289-308; Eileen Clark, ‘Lessons from the past: Family involvement in patient admission and discharge, Beechworth lunatic asylum, 1900-1912,’ International Journal of Mental Health Nursing 27, 1 (2018): 320-328; Cara Dobbing, ‘The Family and Insanity: The experience of the Garlands Asylum, 1862-1910’ in Family Life in Britain, 1650-191, eds. Carol Beardmore, Cara Dobbing and Steven King (Palgrave: 2019), 135-154. 7 Finnane, ‘The Ruly and Unruly’; Stephen Garton, Medicine and Madness: A social history of insanity in New South Wales 1880-1940 (UNSW Press, 1988); David Wright, ‘Getting out of the asylum: understanding the confinement of the insane in the nineteenth century,’ Social History of Medicine 10, 1 (1997): 137-155. 8 Joel Eigen, Witnessing Insanity: Madness and Mad-Doctors in the English Court (New Haven: Yale University Press, 1995), 58. 4 Histories of madness and crime This dissertation takes these questions around public and medical constructions of insanity out of the asylum and into the colonial courtroom. The courtroom was another site where ordinary people played an integral role; the adversarial trial depended on the judgments of jurors, judges and witnesses who had been called upon to identify or determine madness in defendants well before the entry of the nineteenth-century psychiatrist. Within the colonial asylum the language of madness sought to diagnose and categorise, yet in the courtroom the question of madness was primarily a discussion around legal responsibility. This distinction marked the key source of friction between medicine and law for the duration of the nineteenth century: the law was concerned not with medical definitions of health and disease, but a legally-defined insanity that pinpointed awareness, intent and volition.9 The study of madness in this context encompasses both medical and legal systems of knowledge, and the ways in which concepts were filtered through to ordinary people’s judgments of guilt and innocence. The psychiatrist is a central figure in histories of crime and madness, embodying for the historian the advent of the new science of ‘psychiatry’ and its ramifications for the criminal law. The nineteenth century saw new medical theories around human behaviour that challenged the central tenets of the English criminal law; where the criminal law placed emphasis on voluntarism, medical theories increasingly promoted determinism in criminal acts.10 Historians have primarily focused on the debates of doctors, jurists and lawyers, locating the criminal trial as the key site in which these debates took place. The new medical emphasis on determinism made inroads in cases of attempted assassination of monarchy, and the judgments of James Hadfield (1800), Edward Oxford (1840) and Daniel McNaughton (1843) loom large in the historical literature as they drove the encroachment of medical theory into jurisprudence.11 Increasingly, judges endorsed the position of doctors such as James Cowles Prichard, who argued that the partially insane should have as great a claim to acquittals as ‘the raving 9 See Roger Smith, Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981); Eigen, Witnessing Insanity. 10 Smith, Trial by Medicine, 10. 11 Rafiq Memon, ‘Legal theory and case law: Defining the insanity defence in English and Welsh Law,’ Journal of Forensic Psychiatry & Psychology 17, 2 (2006): 230-252. 5 lunatics’.12 The case of McNaughton (1843) saw the formulation of the M’Naghtan rules, a revised defence of insanity that held: at the time of committing the act, the accused was labouring under such a defect of reason from disease of mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong. The M’Naghtan rules placed greater importance on the testimony of doctors, signalling for historians the beginning of an era of expert testimony. Just as the historian of the asylum identifies the ‘discrepancy between theory and practice of diagnosis’, historians of crime have looked beyond the ‘medicalisation’ of criminal laws to the reception of insanity experts in commonplace criminal trials.13 Here, for some, the movement of English ‘maddoctors’ and French ‘alienists’ from the asylum into the criminal courtroom signalled a professional ambition to annex matters of law into the jurisdiction of medical knowledge. This argument is made most persuasively in the context of Paris, where early psychiatric knowledge was passed down through male mentorship of doctors in the Salpêtriére Hospital that kept professional circles tight. Doctors such as Jean-Etienne Esquirol testified on behalf of prisoners as part of a broader ‘professionalisation project’ forging a role for psychiatrists in socio-political affairs.14 In England, the entry of psychiatric experts was far from a seamless process of integration. At the turn of the century, mad doctors became synonymous with the fervour and unreason of the French Revolution as political tensions ran high. The trial and insanity acquittal of James Hadfield (1800) for the attempted assassination of King George III prompted public outcry. Subsequent trials sustained the public ridicule of doctors, condemned by the press as ‘confident disciples of the ‘couldn’t help it school’.15 Only three days after Hadfield’s acquittal the Insane Offenders Bill (1800) was passed, removing the freedom granted to offenders found not 12 James Cowles Prichard, A Treatise on Insanity and Other Disorders Affecting the Mind (London: Sherwood, Gilbert and Piper, 1836), 393, 397-398. 13 Smith, Trial by Medicine, 62. 14 Jan Goldstein, ‘Professional Knowledge and Professional Self-Interest: The Rise and Fall of Monomania in 19th-Century France,’ International Journal of Law and Psychiatry 21, 4 (1998): 385-396. 15 Blackwoods Magazine, November 1850, cited in Daniel Robinson, ‘Wild Beasts and Idle Humours: Legal insanity and the finding of fault,’ in Philosophy, Psychology and Psychiatry, ed. A. Phillips Griffiths (Cambridge: Cambridge University Press, 1994), 169. 6 guilty by reason of insanity and subjecting them instead to ‘detainment until the Governor’s Pleasure be known’. Insane offenders were now confined indeterminately, a public threat to law and order that needed to be contained.16 This dissertation situates psychiatrists as just one voice among many that vied to diagnose, classify, and explain the pathology of offenders in the Australian colonies. Due to the political nature of capital punishment, the Executive Council accorded a broad equivalence to the letters and petitions of ordinary people, the testimony of laymen, the opinions of the trial judges and the medical reports of doctors. As psychiatrists failed to present any empirical system of knowledge, jurors and activists were convinced of their own capacity to identify madness in prisoners. This participation crossed class lines. Ordinary members of the public referred to symptoms such as glazed eyes, odd speech, memory loss, and they also adopted medical terminology, such as ‘monomania’ or ‘maniac’, that was in use among colonial doctors. As in the space of the asylum, lay and medical discourses reinforced one another, with doctors striving to demonstrate a honed experience that the public oftentimes appropriated and moulded to suit their own perspectives with great zeal. I draw on the framework offered by historian Roger Smith, who labelled the phenomenon of lay people applying their own culturally-laden readings of madness to defendants as the ‘commonsense criterion’.17 Like medical opinions, these perspectives were not divorced from Victorian culture and constituted moral judgments regarding offenders; Smith writes that in this period, ‘to ascribe moral insanity to someone was to call into question the ethics of that person’s conduct’. Since the publication of Smith’s definitive Trial By Medicine (1981) there now exists a small yet robust literature that pays heed to the ‘commonsense criterion’ in English trials. One of the most prolific works is Joel Eigen’s Witnessing Insanity (1995), a work that democratised the study of madness in the historical courtroom by including not only the theories of lawyers and doctors but the judgments of ordinary people. Eigen Richard Moran, ‘The origin of insanity as a special verdict: The trial for treason of James Hadfield (1800),’ Law and Society Review 19 (1985): 487. 17 Smith, Trial by Medicine, 62. 16 7 demonstrates the confidence and lack of deference to expertise shown by jurors at London’s Central Criminal Court in the period 1760 to 1843, where ‘ordinary folk did not have to consult a Haslam or a Pritchard to determine what condition they were facing.’18 Lay people essentially put forward ‘opinions in the guise of facts’, yet these opinions could make the difference between a guilty and a not guilty by reason of insanity (NGRI) verdict.19 Where mad-doctors desired ‘the language of medicine’ to guide decisions about insanity and lawyers demanded the language of law, ordinary people provided neither.20 This third discourse, the culturally informed assemblage of the people, needs to be accorded as much attention as those of professionals in historical criminal trials. There were myriad drivers behind lay judgments of insanity. As Smith notes, jurors often presented, in the eyes of doctors, verdicts that were responses to ‘social reaction and unreason’.21 One of the primary functions of public insanity claims was to make sense of criminal behaviour; madness provided an explanation for acts that were, to ordinary people, incomprehensible. An English lawyer mused on this inclination in 1872: ‘To admit that a horrible crime has been deliberately committed by a human being is indirectly to reflect upon ourselves, especially if the criminal, as a refined and educated person, represents human nature at its best’.22 The M’Naghtan rules required jurors to consider the defendant’s consciousness of action or knowledge of right and wrong at the time of the crime, yet jurors often took the extreme nature of the criminal act itself as evidence of insanity. This posed a problem for judges and the administration of criminal justice, as the common law developments of the nineteenth century had moved away from legal considerations of madness as something that could merely be evidenced from an offender’s act. An instrumental framework for this thesis is Arlie Loughnan’s ‘manifest madness’, or the phenomenon that saw ordinary people identify insanity by sight. ‘Manifest madness’ builds on the 18 Eigen, Witnessing Insanity, 82. Eigen, Witnessing Insanity, 106. 20 Smith, Trial by Medicine, 17. 21 Smith, Trial by Medicine, 14. 22 Anonymous, ‘Criminal Responsibility of the Insane,’ Law Magazine 3rd series I (1872): 215. 19 8 theory of ‘manifest criminality’, a term used to describe the determination of responsibility from objective or ‘manifest’ criminal acts in the early modern period that was replaced by a ‘subjective’ criminality with an emphasis on mental states in the Victorian era.23 Loughnan argues that the early modern period of ‘manifest criminality’ was attended by a ‘manifest madness’, in that prior to the lateeighteenth century and the rise of professional psychiatry, criminal insanity was identified where judges and jurors ‘read the ‘madness’ of defendants off his or her acts’.24 This process had three core components that, together, constituted ‘manifest madness’: the importance of the defendant’s acts, the intelligibility of ‘madness’ among lay people, and the process by which the criminal law codified this communal, collective knowledge of madness in the early modern period.25 George Fletcher, the scholar who coined the term ‘manifest criminality’, suggests that the effect of the medico-legal turn in criminal law and the entry of psychiatric knowledge in the nineteenth-century criminal trial effectively ‘removed ordinary people’s confidence in identifying a defendant as insane’.26 Loughnan disputes this, arguing that, while expert knowledge aimed to define insanity ‘in a way that separated it from community beliefs […] as something hidden from the lay observer’, ordinary people resisted this change and continued to assert judgments of ‘manifest madness’ for the duration of the nineteenth century.27 I also draw from Loughnan’s assertion that, with the introduction of the modern insanity defence under M’Naghtan and subsequent English case law and legislation, the practice of ‘manifest madness’ was not excluded but rather, enshrined, in criminal procedure. For one, despite the historiographical assertion that M’Naghtan heralded a ‘spectacle of experts’ in criminal trials, there existed no common law requirement for expert witnesses to testify in cases where the insanity defence was brought.28 In colonial trials, the defence could be raised and evidenced on the basis of lay witness 23 George Fletcher, Rethinking Criminal Law (Oxford: Oxford University Press, 2000), 88-90. Arlie Loughnan, ‘Towards a New Understanding of the Insanity Defence,’ Modern Law Review 70, 3 (2007): 386. See also Roy Porter, Mind Forg’d Manacles: A History of Madness in England from the Restoration to the Regency (London: Athlone Press, 1987); Dana Robinson, Identity, Crime and Legal Responsibility in Eighteenth Century England (London: Palgrave MacMillan, 2004), 43. 25 Loughnan, ‘Towards a New Understanding,’ 382-384. 26 George Fletcher, Rethinking Criminal Law, 839. 27 Loughnan, ‘Towards a New Understanding,’ 390. 28 Robinson, Wild Beasts and Idle Humours, 179. 24 9 testimony—the words of relatives, co-workers, neighbours.29 In addition, the trial judge could direct the jury as to insanity, even where the defence had not been raised by counsel. Most notably, insanity remained a question of fact for the jury: ‘lay jurors [we]re at least formally the final arbiters of a defendant’s claims to the insanity defence’. 30 These procedural rules around the insanity defence, enduring the nineteenth century and much of the twentieth, demonstrate for Loughnan the extent to which insanity in the criminal courtroom was ‘structured around its intelligibility to lay people’ and the cultural ‘collective knowledge’ their judgments depended on.31 Building on Loughnan’s framework, this dissertation demonstrates how criminal trial processes operated to favour and legitimise lay judgments of insanity in the Australian colonies. Though the requirements of the insanity defence under M’Naghtan remained difficult to satisfy in court, there were various allowances made for consideration of an offender’s insanity post-trial. One such avenue was the jury recommendation to mercy, a caveat that juries were permitted to add to guilty verdicts in capital trials for consideration by the Executive Council. Juries could recommend prisoners to mercy on the basis of their perceived insanity in cases where no insanity defence had been raised, or where the defence had been raised but not sufficiently evidenced in accordance with M’Naghtan. In addition, trial judges forwarded their own observations of each trial, along with the trial particulars, to the Executive Council as a matter of procedure. Here too, judges recorded their agreement with the jury recommendation where insanity had not been raised or substantiated or added their own lay judgment of prisoners based on their conduct or appearance in the dock. On the basis of these reports, or on the basis of their own suspicion of insanity or the claims of insanity made in public petitions, members of the Executive Council could arrange for the psychiatric examination of offenders post-trial and adjust sentence accordingly. Loughnan, ‘Towards a New Understanding,’ 392-394. Loughnan, ‘Towards a New Understanding,’ 398. 31 Loughnan, ‘Towards a New Understanding,’ 394. 29 30 10 While appeals for the life of a prisoner formed the basis of post-trial activism, this study explores the ways in which public participation in capital trials went beyond protest of the death penalty. This is generally the position that insanity claims occupy in the historical literature: a reactive discourse that ordinary people used in order to oppose the state-sanctioned murder of prisoners to whom they were sympathetic.32 Eigen attributes the increasing use of insanity defences in the late-eighteenth century to the wide range of petty capital offences in English law. Even with the reduced number of capital offences after 1861, the death penalty continued to pose problems in securing convictions and was increasingly seen as an unpopular, outdated mode of punishment that did not align with British humanitarian ideals. The English psychiatrist Henry Maudsley quipped in 1874: ‘abolish capital punishment and the dispute between lawyers and doctors ceases to be of practical importance’.33 That insanity was a nebulous factor, so difficult to unequivocally rule out in criminal cases, fuelled consternation at the possible execution of insane persons being carried out by the state. For this reason, the assertion of insanity in capital trials carried considerable weight, and as previously outlined, there was certainly a working knowledge among the public in the use of insanity as a particular tool of leverage in post-trial advocacy. Smith, among others, contends that ‘an insanity plea was at the same time a plea for the life of the prisoner’.34 This is the favoured explanation among historians for the increase in the use of the defence, despite the difficulty of satisfying the M’Naghtan rules in Britain from the late nineteenth century to the 1930s, where juries favoured insanity pleas in ‘unprecedented numbers’.35 In the context of Australia, historians note the same correlation in the increased use of the insanity defence around high-profile capital cases and its notable decline after the abolition of capital punishment in Victoria in 1974.36 Arnot, ‘Child Homicide,’ 39-40. Eigen, Witnessing Insanity, 6; Henry Maudsley, Responsibility in Mental Disease (London: Henry King & Co., 1874), 129. 34 Smith, Trial by Medicine, 127. 35 Mark Finnane, “Irresistible impulse’: Historicizing a judicial innovation in Australian insanity jurisprudence,’ History of Psychiatry 23, 4 (2012): 455; David M. Doyle and Liam O’Callaghan, Capital Punishment in Independent Ireland: A social, legal and political history (Oxford: Oxford University Press, 2020), 177. 36 Finnane, ‘Irresistible Impulse’ 465; Law Reform Commission of Victoria 1990, 89; Arlie Freiberg, ‘Out of Mind, out of sight’: The disposition of mentally disordered persons involved in criminal proceedings,’ Monash University Law Review 3, 2 (1976): 134-172; Freiberg, ‘The disposition of mentally disordered offenders in Australia: ‘Out of mind, out of sight’ revisited,’ Psychiatry, Psychology and Law 1, 2 (1994): 97-118. 32 33 11 However, to limit the public use of insanity claims to an opposition to capital punishment is to do an injustice to the textual nuances of this dialogue and the many ways in which it transcended its immediate reactive function to embody one of proactive recommendation. For one, insanity claims were not only put forward in opposition to capital punishment but rather, to endorse it. Conceptions of madness ranged from the temporary ‘moral insanity’ to the biologically determined hereditary illness, and in cases where a congenital mental illness was assumed, lay people suggested that prisoners would be of more social use after death in providing their brain for dissection. More broadly, this phenomenon did not see people submitting homogenous pleas to their Governor, but rather, involved the populace talking back, their petitions offering public response to crime, responsibility, and punishment. Just as insanity claims became a blanket tool for post-trial activism in the broadest sense, so too did these claims hold a specificity in regard to particular crimes and prisoner demographics. For example, insanity claims in cases of Aboriginal defendants turned on the question of mental capacity to understand English law, while claims for infanticide defendants pathologized the stress of adversity that working-class women faced in their everyday lives. These claims held political positions beyond the aim of securing commutation, seizing the opportunity to refashion the narrative. Insanity provided a duality of argument, where activists sought to negate or diminish a prisoner’s responsibility while at the same time critiquing the broader societal pressures that had driven his or her criminal behaviour. Serious crimes opened up questions around society and governance that ordinary people, in submitting their views on the mental states of offenders, answered in kind, offering suggestions on how their government could better support working-class women or more effectively punish sex offenders. Crime, Madness and Gender In this thesis I situate gender as the primary category of analysis to illuminate the ways in which colonial constructions of gender relations affected both the perpetration of crimes and the understanding of criminal behaviour. In Australia there is now a strong historiographical tradition of using crime as a 12 lens through which to examine historical sexual and gendered relations.37 Capital interpersonal crimes could be distinctly gendered in their perpetration, ranging as they did from ‘crimes of reproduction’ such as infanticide, abortion and baby farming, to crimes of misogyny such as intimate partner homicide and rape.38 The system of capital punishment operated as an instrument of colonial governance that denounced crimes in the strongest sense, often serving to reinforce middle-class visions for respectable gender relations in a society perceived as unruly and not yet freed of its penal origins. Historians have examined execution patterns, highlighting the liberal use of capital punishment toward Aboriginal defendants in Queensland and New South Wales for the crime of rape as a means of enacting social authority over indigenous populations.39 In Victoria, the execution of three women in two years was a political reaction to moral panics surrounding reproductive crime and a falling colonial birth rate.40 37 Judith Allen, 'The invention of the pathological family: a historical study of family violence in N.S.W.,' Family Violence in Australia, ed. Carol O'Donnell and Jan Craney (Melbourne: Longman Pearson, 1982); Kay Saunders, 'The study of domestic violence in colonial Queensland: Sources and problems,' Australian Historical Studies 21, 82 (1984): 68-84; Marilyn Lake. 'Historical reconsiderations IV: The politics of respectability: Identifying the masculinist context,' Australian Historical Studies 22, 86 (1986): 116-131; Judith Allen, ‘Mundane Men: Historians, masculinity and masculinism,’ Australian Historical Studies 28, 95 (1987): 617628; Judith Allen, ‘The Making of a Prostitute Proletariat in Early Twentieth-Century New South Wales,’ in So Much Hard Work: Women and Prostitution in Australian History, ed. Kay Daniels (Sydney: Fontana Books, 1984): 192-232; Judith Allen, Sex and Secrets: Crimes Involving Australian Women Since 1880 (Oxford: Oxford University Press, 1990); Judith Allen, ‘The Trials of Abortion in Late Nineteenth and Early Twentieth Century Australia,’ Australian Cultural History 12 (1993): 87-99; Barbara Baird, “The Incompetent, Barbarous Old Lady Round the Corner’: The Image of the Backyard Abortionist in Pro-Abortion Politics,’ Hecate 22, 1 (1996): 7-26; Susanne Davies, ‘Captives of Their Bodies: Women, Law and Punishment, 1880s-1980s,’ in Sex, Power and Justice: Historical Perspectives on Law in Australia, ed. Diane Kirkby (Oxford: Oxford University Press, 1995), 99-115; Juliet Peers, “Accept Any Woman’s Word?’ Rape and Republicanism: The body beneath the foundation stone,’ Journal of Australian Studies 20, 47 (1996): 123-146; Barbara Baird, ‘The Self‐aborting Woman,’ Australian Feminist Studies 13, 28 (1998): 323–37; Contance Blackhouse, “Her protests were unavailing’: Australian legal understandings of rape, consent and sexuality in the ‘roaring twenties,” Journal of Australian Studies 24, 64 (2000): 14-33. 38 Judith Allen, ‘Octavius Beale Reconsidered: Infanticide, Baby farming and Abortion in NSW 1880-1939,’ in What Rough Beast?: The State and Social Order in Australian History, ed. Sydney Labour History Group (London: Allen and Unwin, 1982), 111-129; Barbara Baird, ‘Abortion in South Australia before 1970: An Oral History Project’ Lilith: A Feminist History Journal 7 (1991): 113-29; Anne-Maree Collins, 'Testimonies of Sex: Rape in Queensland, 1880-1919,' Journal of Australian Studies 15, 29 (1991): 50-63. 39 Libby Connors, ‘Uncovering the Shameful: Sexual Violence on an Australian Colonial Frontier’ in Legacies of Violence: Rendering the Unspeakable Past in Modern Australia, ed. Robert Mason (New York: Berghan Books, 2017): 33-53; Andy Kaladelfos, ‘The Politics of Punishment: Rape and the Death Penalty in colonial Australia, 1841-1901,’ History Australia 9, 1 (2012): 155-175; Andy Kaladelfos, ‘The ‘Condemned Criminals’: Sexual violence, race and manliness in colonial Australia,’ Women’s History Review 21, 5 (2012): 697-714; David Phillips, ‘Anatomy of a Rape Case, 1888: Sex, race, violence and criminal law in Victoria,’ in A Nation of Rogues? Crime, Law and Punishment in Colonial Australia, ed. David Philips and Susanne Davies (Melbourne: Melbourne University Press, 1994), 97-192; Carmel Harris, “The terror of the law’ as applied to black rapists in Queensland,’ Hecate 8, 2 (1982): 22-48. 40 Shurlee Swain and Renate Howe, Single Mothers and their Children: Disposal, Punishment and Survival in Australia (Cambridge: Cambridge University Press, 1995); Kathy Laster, 'Arbitrary Chivalry: Women and Capital Punishment in Victoria, Australia 1842-1967,’ Women & Criminal Justice, 6,1 (1994): 67-95; Kay 13 However, Executive decisions were not only formed on the basis of top-down governance but included the perceptions of perpetrators as expressed by ordinary people in the courtrooms and the press. Studies of infanticide and child homicide have been particularly successful in demonstrating the narratives that were constructed around offenders post-trial, and the central role of gender in these retellings.41 While early literature employed the feminist criminological ‘chivalry’ theory, arguing that women received sympathy within the criminal justice system due to the paternalism of male jurors and judges, subsequent studies add complexity to this argument in demonstrating how sympathy for convicted women depended on more than their gender, but readings of their behaviour and conduct as appropriately ‘feminine’.42 In recent decades, historians have applied similar methodology to cases of male prisoners in demonstrating how a ‘hierarchy of masculinities’ operated between male judges and jurors in their approximation of defendants.43 Where maternalism and morality were key determinants Saunders, Deadly Australian Women: Stories of the women who broke society's greatest taboo (Sydney: HarperCollins, 2013); Michael Canon, The women as murderer: Five who paid with their lives (Melbourne: Australia Publishing Company, 1994). 41 Charlotte Macdonald wrote in 1989: ‘No longer is femininity seen as a single, coherent whole, but rather as a system that contains a multitude of elements, many of which are conflicting and contradictory’. Charlotte Macdonald, ‘Crime and Punishment in New Zealand, 1840-1913: A gendered history’ New Zealand Journal of History 23, 1 (1989): 5-21; Kathy Laster, 'Infanticide: A Litmus Test for Feminist Criminological Theory' Australia and New Zealand Journal of Criminology 22 (Sep 1989): 151-66; Dana Robinson, 'Bodies of Evidence, States of Mind: Infanticide, emotion and sensibility in eighteenth-century England' in Mark Jackson (ed.) Infanticide: Historical Perspectives on Child Murder and Concealment, 1550-2000 (London: Ashgate, 2002): 73-92; Hilary Marland, ‘Getting away with murder? Puerperal insanity, infanticide and the defence plea’, in Infanticide: Historical Perspectives on Child Murder and Concealment, 1550-2000, ed. Mark Jackson (Vermont: Ashgate Publishing, 2002): 168-92; Daniel Grey, “Agonised Weeping’: Representing Femininity, Emotion and Infanticide in Edwardian Newspapers,’ Media History 21, 4 (2015): 468-480; Nicola Goc, Women, Infanticide and the Press 1822-1922: News Narratives from England and Australia (Surrey: Ashgate, 2013); Margaret Arnot, ‘Perceptions of Parental Child Homicide in English Popular Visual Culture, 1800-1850,’ Law, Crime and History 7, 1 (2017):16-74; Bronwyn Labrum, ‘The Boundaries of Femininity: Madness and Gender in New Zealand, 1870-1910,’ in Women, Madness and the Law: A Feminist Reader, ed. Wendy Chan, Dorothy E. Chunn, and Robert Menzies (London: Glass House, 2005): 59-77. 42 Carol Smart, Women, Crime and Criminology: A Feminist Critique (London: Routledge and Kegan Paul, 1976); J. M. Beattie, ‘The Criminality of Women in Eighteenth Century England,’ Journal of Social History 8, (1975): 80-116; Jan Robinson, ‘Canterbury’s Rowdy Women: Whores, Madonnas and Female Criminality,’ Women’s Studies Journal, 1, 1 (1984): 6-25; Lucia Zedner, ‘Women, Crime and Penal Responses: A Historical Account,’ Crime and Justice 14 (1991): 307-362. 43 Carolyn Strange, ‘Masculinities, Intimate Femicide and the Death Penalty in Australia, 1890-1920,’ British Journal of Criminology 43, 2 (2003): 310. 14 of sympathy in female defendants, historians identify familial ties and fiscal responsibility as significant factors in male defendants.44 I argue that discourses of insanity were central to public readings of criminal behaviour. Historians have utilised insanity to explain the ‘arbitrary’ chivalry meted out to female prisoners in the period, arguing that they were categorised as either ‘bad’, receiving copious exemplary punishment, or as ‘mad’ and granted leniency. Scholars argue that the madness/badness binary upheld the nineteenthcentury gender order that appointed women or ‘the fairer sex’ as the social arbiters of morality, aptly described in the colonial context as ‘damned whores’ or ‘God’s Police’.45 Insanity made room for respectable women thought to be deserving of charity in the criminal justice system in the emptying of any malicious intent or agency from their acts. Jill Ainsley’s study of violent crime in England and Wales between 1832-1901 demonstrates that the insanity defence was gendered in its application, operating to ‘save women from the gallows’ but ultimately serving to ‘strip [their] crimes of meaning’.46 This dissertation aims to open up this framework to new possibilities in a number of ways. It seeks to demonstrate how discourses of insanity in cases of female prisoners were varied and overlapping, often used by activist women to both diminish responsibility of the offender and draw attention to the legitimate ‘stresses’ in the lives of working-class women that led to violent crime. More broadly, the dissertation seeks to closely investigate the same binary that operated in cases of male violence and how the interplay between subjectivities of race, class, congenital illness and sexuality often muddied any clean divide between ‘mad’ and ‘bad’. 44 Alesha Lister, Masculinity and Fatherhood in Representations of Male-Perpetrated Child Homicide in London, 1889-1913 (PhD thesis, Monash University, 2016); Andy Kaladelfos, ‘The Politics of Punishment: Rape and the Death Penalty in colonial Australia, 1841-1901,’ History Australia 9, 1 (2012): 155-175; Andy Kalafeldos, ‘The Dark Side of the Family: Paternal Child Homicide in Australia,’ Journal of Australian Studies 37, 3 (2013): 333-348. 45 Ann Summers, Damned Whores and God’s Police (Melbourne: Penguin, 1975). 46 Jill Newton Ainsley, “Some Mysterious Agency’: Women, Violent Crime and the Insanity Acquittal in the Victorian Courtroom,’ Canadian Journal of History 35, 1 (2000): 48. 15 Paramount to the analysis of gender in criminal trials are the intersecting categories of class and race that often reoriented and reframed lay, press and government responses to offenders. I examine gendered readings of ‘criminal insanity’ in relation to the aspirational middle-class ideals that were promulgated within the court system. The substantial majority of defendants that came before the courts in cases for interpersonal capital crimes were working-class, their actions judged by middle-class judges, lawyers and colonial administrators as well as a broader mix of middle-class and working-class commentators. In their administration of criminal justice, judges and members of the Executive often punished or commuted sentence in line with aspirational middle-class standards of ‘respectability’ that encompassed ideals of companionate marriage, fulfilment of parental duties along gendered lines and appropriate means of work. By the same token, efforts to secure commutation were often undertaken by middle-class activists who chose offenders they considered redeemable enough to support. Insanity could be utilised to portray the crime as an act of temporary illness in an otherwise respectable and lawabiding life, or on the other hand, insanity could be weaponised to demonstrate an explicitly workingclass hereditary illness. This dissertation was formed around a sample of convicted capital trials, and for that reason race features as a secondary consideration. Few Aboriginal defendants were convicted of the crimes of intimate partner homicide, child homicide or sexual offences that are analysed in this thesis, but in the handful that were, insanity was constructed in accordance to medical theories that propagated the underdevelopment of mental faculties in indigenous populations. This thesis additionally engages with the historiography of female offending in examining the relatively few insanity claims presented in cases of women who killed partners, and the possible implications of class relations in these silences. Whereas the literature on insanity as featured in infanticide cases is abundant, the literature on women who killed adults remains limited. In the 1970s and 1980s, a generation of feminist criminologists took up this history with contemporary feminist aims in mind, utilising historical case studies to emphasise how the lived experiences of women had long 16 been neglected by criminologists and lawmakers.47 In another strand, popular nonfiction works sensationalise the stories of the women who were executed in Victoria, often replicating the ‘mad/bad’ binary in their own depictions of offenders as sexualised and ‘monstrous’ or victimised as desperately mad.48 In recent years the burgeoning field of historical feminist criminology has sought to restore historical context to the history of female offending in focussing on a wide range of offences beyond that of convicted murder.49 Here I revisit capital trials of convicted female-perpetrated murder and critically analyse the narratives of insanity that were put forward in these cases. In particular, this thesis interrogates the lack of insanity claims in these cases when compared to cases of infanticide, crimes that in their intersections with reproductive autonomy and domestic violence, offered possible platforms for suffragists and female campaigners to protest for legislative political change. Through micro-analysis this dissertation considers the effect of class relations on social campaigning in these cases. In addition, it also disrupts the mad/bad binary in demonstrating how insanity claims were not exclusively used to remove the Smart, Women, Crime and Criminology; Dorie Klein, ‘The etiology of female crime: A review of the literature,’ Issues in Criminology 8 (1973): 3-30; Dorie Klein and June Kress, ‘Any woman’s blues: A critical overview of women, crime and the criminal justice system,’ Crime and Social Justice 5 (1976): 34-49; Meda Chesney-Lind, ‘Chivalry re-examined: women and the criminal justice system’ in Women, Crime and the Criminal Justice System, ed. L. H. Bowker (Massachusetts: Lexington, 1978); Beverly Brown, ‘Women and crime: The dark figures of criminology,’ Economy and Society 15, 3 (1986): 355-402; Maureen Cain, ‘Realism, Feminism, Methodology and Law,’ International Journal for the Sociology of Law 14 (1986): 255-267; Loraine Gelsthorpe and Allison Morris, ‘Feminism and Criminology in Britain’ The British Journal of Criminology 28, 2 (1988): 93-110; Beattie, ‘The Criminality of Women in Eighteenth Century England’; Robinson, ‘Canterbury’s Rowdy Women’; Macdonald, ‘Crime and Punishment in New Zealand’; Laster, ‘Infanticide’; Zedner, ‘Women, Crime and Penal Responses’. 48 James Holledge, Australia’s Wicked Women (Melbourne, Horwitz Publications, 1963); Brian Williams, Martha Needle: The Spellbinding Story of Australia’s Most Infamous Femme Fatale (Melbourne: New Holland, 2018); Nigel Cawthorne, Killer Women: Chilling, Dark and Gripping True Crime Stories of the Women Who Kill (London: Hachette, 2018); Paul B. Kidd, Australia’s Serial Killers (Melbourne: Macmillan, 2011); Samantha Battams, The Secret Art of Poisoning (Melbourne: Samantha Battams, 2019). Alex Pined does well to at least mention Needle’s history of mental instability and abusive childhood home. Alex Pined, The World’s Most Lethal Ladies (Shaharm Publications, 2015). 49 Alana Piper and Victoria Nagy, ‘Imprisonment of Female Urban and Rural Offenders in Victoria, 18601920,’ The International Journal for Crime, Justice and Social Democracy 8, 1 (2019): 100-115; Alana Piper and Victoria Nagy, ‘Risk Factors and Pathways to Imprisonment among Incarcerated Women in Victoria: 18601920,’ Journal of Australian Studies 42, 3 (2018): 268-284; Alana Piper and Victoria Nagy, ‘Versatile Offending: Criminal Careers of Female Prisoners in Australia, 1860-1920,’ Journal of Interdisciplinary History 48, 2 (2017): 187-210. 47 17 agency from female perpetrators, but on the contrary, such narratives could legitimise female anger in similar terms to male anger through language of blind rage and loss of self-control. Professionalisation of Psychiatry The periodisation of this dissertation traces insanity claims in capital trials from a decade of peak activism in the 1880s until the interwar period, when they tapered off as the profession of psychiatry became more codified and streamlined in practice. This study is primarily interested in the position of psychiatrists in the context of capital punishment and within the culture of colonial activism that jostled to define madness on its own terms. As a secondary consideration, however, it investigates whether— as the language of colonial psychiatry, codified through an increasing number of studies, professional journals and European influences, gradually became closed off to public use in the 1920s and 1930s— there was a potential endpoint of ‘manifest madness’ and its legitimacy in the courtroom. In doing so, this thesis can be read alongside the much broader historiography of forensic psychiatry that delineates the uneven development of the field across jurisdictions and nation states in the nineteenth century.50 In particular, Arlie Loughnan and Tony Ward trace the relationship between criminal law and the ‘embryonic’ development of forensic psychiatry alongside it, asserting that in England, the period 1843 to 1880 marked a period of overt dispute and resistance expressed by the legal profession and ordinary people.51 Loughnan and Ward note an increasing accommodation of psychiatric expertise within the sphere of the criminal law from the 1880s that, aside from specific appointments within the British Home Office, can be broadly attributed to the increasing overlap between medical and legal notions of insanity.52 Increasingly, judges advocated for the legal reform and relaxation of M’Naghtan in line with reforms suggested by the medical profession. From the last decades of the nineteenth century, historians pinpoint an increasing collaboration between psychiatrists, lawyers and Harry Oosterhuis and Arlie Loughnan, ‘Madness and crime: Historical perspectives on forensic psychiatry,’ International Journal of Law and Psychiatry 37, 1 (2014): 1-16. 51 Oosterhuis and Loughnan, ‘Madness and crime,’ 6-10. 52 Arlie Loughnan and Tony Ward, ‘Emergent authority and expert knowledge: Psychiatry and criminal responsibility in the UK,’ International Journal of Law and Psychiatry 37, 1 (2014): 29. 50 18 policy makers in matters of public safety as psychiatry itself became more widely accepted as a science that held the potential to improve state governance.53 Further aiding the cause of psychiatrists was a firmly entrenched asylum system, the emergent medico-legal societies, as well as new social-scientific fields of criminology and anthropology that sought to control deviance in society and fostered the idea that social scientists were indispensable to nation states in measuring and managing the health of their populations.54 Psychiatrist Michael Stone identifies a proliferation in psychiatric diagnoses during this era as new disorders and categories were put forward by doctors, including the influential diagnostic schema devised by Emile Kraepelin that provided the blueprint for the Diagnostic and Statistical Manual of Mental Disorders (1952).55 With the increasing organisation and acceptance of psychiatry in Britain and Europe, Loughnan and Ward suggest that the period of contention between laypersons and practitioners began to draw to close.56 In following insanity claims through the Supreme Court from the 1880s, this dissertation finds that the corresponding period of contention lasted up to the interwar period in Victoria. Historians of psychiatry have delineated the ways in which the asylum system intersected with the criminal justice system in the colonial period, demonstrating how psychiatrists entered courtrooms and applied the diagnostic schema developed within lunatic asylums to criminal defendants.57 Juridical and top-down Loughnan and Ward, ‘Emergent Authority’, 8. Robert Nye, Crime, Madness and Politics in Modern France (Princeton: Princeton University Press, 1984); Harry Oosterhuis, ‘Treatment as Punishment: Forensic psychiatry in the Netherlands (1870-2005),’ International Journal of Law and Psychiatry 37, 1 (2014): 37-49; Eric Engstrom, ‘Topographies of forensic practice in Imperial Germany,’ International Journal of Law and Psychiatry 37 (2014): 63-70; Svein Atle Skalevag, ‘The irresponsible criminal in Norwegian medico-legal discourse,’ International Journal of Law and Psychiatry 37 (2014): 82-90; Urs Germann, ‘Psychiatrists, criminals and the law: Forensic psychiatry in Switzerland 1850-1950,’ International Journal of Law and Psychiatry 37 (2014): 91-98; Mary Gibson, ‘Forensic psychiatry and the birth of the criminal insane asylum in modern Italy,’ International Journal of Law and Psychiatry 37 (2014): 117-126. 55 Michael H. Stone, Healing the Mind: A History of Psychiatry from Antiquity to the Present (London: W. W. Norton & Co., 1997), 81. On Kraepelin, see Hannah Decker, ‘How Kraepelinian was Kraepelin? How Kraepelinian are the neo-Kraepelin’s? From Emil Kraepelin to DSMI-III,’ History of Psychiatry 18, 3 (2007): 337-360; Assen Jablensky, ‘Living in a Kraepelinian world: Kraepelin’s impact on modern psychiatry,’ History of Psychiatry 18, 3 (2007): 381-388. 56 Loughnan and Ward, ‘Emergent Authority,’ 8. 57 Catharine Coleborne, Reading Madness: Gender and difference in the colonial asylum in Victoria, Australia, 1848-1888 (Perth: API network, 2007); Garton, Medicine and Madness; Milton Lewis, Managing Madness: Psychiatry and Society in Australia 1788-1980 (Canberra: Australian Institute of Health, 1988). 53 54 19 histories examine the legislative accommodation of medico-legal approaches in criminal law from the 1880s.58 As a result, the contextualised interactions between psychiatrists and laypersons in capital trials are largely captured by criminal histories, with the position of the psychiatrist and his claim to knowledge often a peripheral concern in those studies.59 While crime histories are now turning away from a popular fixation with capital trials, there remains much to be gleaned in those files for the history of psychiatric professionalisation as it developed in Australia. In applying a micro-analysis to capital trials this dissertation suggests a professional narrowing of the language of insanity as the field became more established in Victoria from the interwar years. Theoretical Framework This dissertation approaches the subject from the perspective of cultural history, asking questions of the form and function of the language of madness as it was applied to criminal trials by a variety of groups. It examines the relationship between language and power in a specific historical context that by necessity engages with the theories put forward by Michel Foucault’s landmark History of Madness (1961) and subsequent works. Foucault sought to reframe the ‘enlightened’ turn in eighteenth and nineteenth-century psychiatry, positing that co-existing with the humanistic, rational and scientific treatment of madness was a desire to categorise, classify and control human behaviour in accordance with the aims of the industrialising, bourgeois nation state. Foucault’s theory of nineteenth-century psychiatry as a new kind of subjugation of the mad, or those who transgressed societal boundaries, gave way to a plethora of asylum studies that persuasively demonstrated the ways that the nineteenth-century ‘moral treatment’ of lunatic asylums sought to reform patients into citizens who could take up industrious, appropriately gendered labour. Where previously madness was conceived of as a mistake of judgment or reason, from the nineteenth century madness became mental illness, or ‘human capital 58 Mark Finnane, Punishment in Australian Society (Melbourne: Oxford University Press, 1997); Finnane, ‘Irresistible Impulse’; Stephen Garton, 'The Rise of the Therapeutic State: Psychiatry and the System of Criminal Jurisdiction in New South Wales, 1880-1940,' Australian Journal of Politics and History 32, 3 (1986): 378-388. 59 Allen, Sex and Secrets; Strange, 'Masculinities, Intimate Femicide and the Death Penalty’; Elizabeth Nelson, Homefront Hostilities: The First World War and Domestic Violence (Melbourne: Australian Scholarly Publishing, 2014); Kaladelfos, ‘The Dark Side of the Family’; Laster, 'Arbitrary Chivalry,’ 81-82. 20 waiting to be restored’.60 In Discipline and Punish (1991), Foucault elaborated on the remaking of citizens in the examination of the modes of prosecution and punishment of citizens by states and the ways in which prison architecture shaped the behaviour and reformation of prison inmates.61 For Foucault, the institutions of asylum and prison operated as instruments of a broader apparatus of state power, or ‘biopower’, that was founded upon and spurred forward by the new social sciences that sought to categorise human behaviour and of which psychiatry was the purest form.62 In this period science was both descriptive and prescriptive as a form of knowledge, wielding increasing power over and between citizens. Historians of crime and madness delineate the ways in which biopower operated in the colonial criminal justice system. Beyond the political machinations of capital punishment, scholars have shown how the criminalisation of vagrancy, living without lawful means of support and public drunkenness reinforced the imperative of industrious labour, while criminalisation of prostitution and reproductive control emphasised the imperative of ‘honest’ and gendered labour.63 In her study of vagrant women in late-nineteenth century Melbourne, Sue Davies outlines the conceptual linking of idleness, degeneracy and insanity as women were transferred between reformatory, prison and asylum.64 In these spaces, manual labour was key to social betterment. This was the end of the reforming process, and scholars of crime cast their eyes to the criminal trial to demonstrate the ways in which defendants were judged on their redemptive qualities on the stand. Here the ‘character’ of defendants was ascertained through character witnesses, family connections, work history and demonstrated appreciation and remorse for the act evidenced through confessional signs such as tears, religious prayer and apologies in the stand. Federico Leoni, ‘From Madness to Mental Illness: Psychiatry and Biopolitics in Michel Foucault,’ in The Oxford Handbook of Philosophy and Psychiatry, ed. K. Fulford et al (New York: Oxford University Press, 2013), 98. 61 Michel Foucault, Discipline and Punish: The Birth of the Prison (Penguin: London, 1991), 201-209. 62 Michel Foucault, The Will to Knowledge: The History of Sexuality Volume 1 (New York: Pantheon, 1978), 140. 63 Sue Davies, ‘Working their way to respectability: Women, vagrancy and reform in late nineteenth century Melbourne,’ Lilith no. 6 (1989): 50-63; Julie Kimber, “A nuisance to the community’: Policing vagrant women,’ Journal of Australian Studies 34, 3 (2010): 275-293; Judith Allen, ‘Octavius Beale Reconsidered.’ 64 Sue Davies, ‘Working their way to respectability: Women, vagrancy and reform in late nineteenth century Melbourne,’ Lilith no. 6 (1989): 50-63. 60 21 Psychiatrists and criminologists sought to distinguish between a ‘criminal class’, including ‘habitual’ and ‘instinctual’ offenders, as opposed to ‘accidental’ offenders who acted on impulse rather than a congenital illness, in order to carve out specialised laws to effectively handle both types of deviance. The antecedents of offenders aided judges in determining to which category an offender belonged. Here I seek to extend this framing of ‘biopower’ in interrogating the use of psychiatric discourse by ordinary people and the relationship of this language to psychiatric knowledge in the space of the criminal trial. Foucault was primarily interested in the ways that ‘human beings are made subjects’ and his investigation was twofold in examining the ways human beings are made ‘subject to’ others, and the ways they are made subjects in their sense of self-identity or ‘self-knowledge’.65 Ordinary men and women viewed offenders within the conceptual structures that governed their lives, and they, too, mentally sorted offenders into categories of ‘accidental’ offenders and the congenital criminal ‘other’. Laypersons were drawn to offenders who possessed alleged redemptive qualities and demonstrated a comprehensible aspect that they saw reflected in themselves, upon which their post-trial activism was consciously or subconsciously predicated. In this aspect, the activism in these cases often only served to perpetuate the bourgeois criterion of the redeemable, hard-working and gender abiding citizen. On the other hand, this dissertation suggests that the project of psychiatry and the new social sciences, in seeking to establish an empirical hierarchy of criminality and diagnostic schema for criminal madness, was not yet complete or absolute in the colonial context, but rather existed alongside and fought against lay appropriations of psychiatric language. In doing so it focuses on the relative power that resided in the language of ordinary people and the unintended dual function of this language, in both upholding a middle-class industrial hegemony and protesting the hardships that came with honest adherence to labour within that society. Michel Foucault, ‘Afterword: The subject and power,’ in Michel Foucault: Beyond Structuralism and Hermeneutics, ed. H. Dreyfus and P Rabinow (The Harvester Press: Brighton, 1982), 208-212. 65 22 Methodology and data Qualitative analysis has long been the preferred method of crime historians, allowing for the attention to detail and contextual focus that criminal trials often demand as a source base. As has already been mentioned, crime history in Australia is undergoing what might be considered as a quantitative turn that moves away from the qualitative, micro-analyses of the historical literature in favour of large databases formed alongside the gradual digitisation of historical trial records. 66 This shift is spurred by funded projects such as Griffith University’s Prosecution Project, as well as an emergent group of researchers applying criminological methods and theories to historical data.67 Such research is propelling the field forward in uncovering oft-neglected areas of study and noting longitudinal patterns over time.68 Many of these studies proceed from the premise that the field has been saturated with studies of capital crimes that have overshadowed petty offences such as larceny or vagrancy that arguably were closer to the common experience of working-class defendants in the criminal justice system. This dissertation, in its focus on murder and sexual offences that certainly were extraordinary, conducts qualitative analysis from a quantitative dataset of capital conviction trials and attempts to ask new questions of an oft-used source base. In doing so, it engages with both high profile trials that feature heavily in the literature alongside other capital trials that have been continually overlooked by researchers. In its method, this dissertation upholds Ruth Harris’ assertion that ‘each court decision fixe(s) a temporary moment in See Victoria Nagy, ‘Women, old age and imprisonment in Victoria, Australia 1860-1920,’ Women and Criminal Justice (2020), forthcoming; Nagy and Piper, ‘Imprisonment of female urban and rural offenders in Victoria, 1860-1920’; Piper and Nagy, ‘Risk factors and pathways to imprisonment’; Alana Piper and Lisa Durnian, ‘Theft on trial: Prosecution, conviction and sentencing patterns in colonial Victoria and Western Australia,’ Australian and New Zealand Journal of Criminology 50, 1 (2017): 5-22. 67 See Mark Finnane and Alana Piper, ‘The Prosecution Project: Understanding the changing criminal trial through digital tools,’ Law and History Review 34, 4 (2016): 873-891; Mark Finnane and Yorick Smaal, ‘The Prosecution Project: Using crime records to access family and other histories,’ Queensland Review 25, 1 (June 2018): 89-101. 68 Enid Cullen and Alana Piper, ‘Crime across time: Mapping longitudinal changes in criminal justice,’ The Prosecution Project, Research Brief 20, https://prosecutionproject.griffith.edu.au/crime-across-time-mappinglongitudinal-changes-in-criminal-justice (2 February 2016, viewed 1 June 2020); Mark Finnane, Andy Kaladelfos and Alana Piper, ‘Sharing the archive: Using web technologies for accessing, storing and re-using historical data,’ Methodological Innovations 11, 2 (2018): 1-11; Lisa Durnian, ‘Police practice and judge’s rules, 1926-1961,’ Law and History 5, 2 (2018): 55-85; Piper and Nagy, ‘Versatile offending’. 66 23 social and political history’ that holds rich potential, both for micro-analysis and for a coherent bigger picture.69 I apply a qualitative analysis to the 215 convicted capital cases in Melbourne’s Supreme Court and regional assizes between 1880 and 1939. Capital crimes in the state of Victoria from 1880 comprised murder, attempted murder, rape, buggery (homosexual rape or sodomy), carnal knowledge of a girl under the age of ten, arson, burglary and treason. A preliminary examination of the data sample showed that insanity claims arose more frequently in interpersonal crimes and, due to time and resource constraints, I focus exclusively on cases of murder and sexual offences for this reason. The sources are drawn from two complete series, Capital Case Files (VPRS 264) and Capital Sentences Files (VPRS 1100), both held by the Public Record Office of Victoria and containing records open to the public dating up to 1942. The two series complement each other and for some trials they hold the same documents. All cases of murder and sexual offences convicted for the period 1880-1939 were compiled into a qualitative dataset that forms the source base of this thesis. Both series contain all case materials relating to convicted trials that were presented to the Executive Council for consideration in relation to capital punishment, often including trial transcripts, police reports, witness statements, medical reports, Judge’s notes and petitions or letters sent to the Governor in support of the prisoner. Capital Case Files have been a popular source for crime historians due to the detail of documentation and ease of archival organisation compared to lower court records.70 This dissertation was very much formed around the reading of these files, with the cases chosen for microanalysis having some bearing on insanity claims, post-trial activism or divulging the interactions between doctors and lay persons. 69 Ruth Harris, Murders and Madness: Medicine, Law and Society in the Fin de Siecle. (Oxford: Clarendon Press, 1989), 20. 70 David Plater and Sue Milne, 'All that's Good and Virtuous or Abandoned and Depraved in the Extreme?' Capital Punishment and Mercy for Female Offenders in Colonial Australia, 1824 to 1865,' University of Tasmania Law Review 33, 1 (2014): 83-140; Laster, 'Arbitrary Chivalry’; Nelson, Homefront Hostilities; Jan Gammon, ‘Melbourne’s Magdalenes: Crimes of Reproduction, 1895-1902,’ (Honours Thesis, Monash University, 199), 1; Saunders, Deadly Australian Women, 213-222. 24 The source base is not without limitations and does require other primary material to supplement certain omissions in the data. The Capital Case Files and Capital Sentences Files are not digitised and there is no complete, publicly accessible database detailing the key components of each trial, such as offence or presiding judge. As a result I compiled a database that included perpetrator characteristics (name, sex, age, occupation, offence), offence location, final sentence, victim (name, age and relation to perpetrator), court, trial judge and any insanity claims made. This dataset provided a quantitative base and foundation from which to then conduct qualitative analysis of specific trials. This initial compilation of data was supplemented with information from digitised newspapers and data cross-checked with a dataset kindly provided by the Prosecution Project.71 Cases involving insanity claims have been identified via the author’s manual examination of each record. There are no doubt resultant gaps caused by human error. The trial data is supplemented by newspaper reports sourced from Trove, the National Library of Australia’s digital database of hundreds of Australian newspapers.72 In compiling the preliminary quantitative data, information was used performing a key-term search of the perpetrator’s surname and trial date. Newspaper coverage was then used more substantially to contextualise the qualitative data using crime reports, editorials and coverage on post-trial activism. Since the launch of Trove and the subsequent reliance of researchers on its digital sources, historians have voiced concern regarding the use of algorithm and key-search methods for historical research, and as such I have strived to be as thorough and context-wary as possible in reading all available newspaper coverage (state-wide) relating to the trials chosen for micro-analysis.73 A prevalent practice known as ‘cut and paste’ journalism saw See Finnane and Piper, 'The Prosecution Project’. Olivia Nielson, ‘Sharing our nation’s treasures: Digitisation at the National Library of Australia,’ Access 24, 2 (2010): 10-15. 73 Lara Putnam, ‘The Transnational and the Text-Searchable: Digitised sources and the shadows they cast,’ American Historical Review 121, 2 (2016): 377-402; Katherine Bode, ‘Fictional Systems: Mass-Digitization, Network Analysis and Nineteenth-century Australian Newspapers,’ Victorian Periodicals Review 50, 1 (2017): 100-138. 71 72 25 smaller, rural newspapers reprinting articles verbatim from large dailies, substantially narrowing the pool of original reports and editorials.74 The rich potential of newspaper coverage beyond basic information such as trial date and location lies not so much in its accuracy but in the way reports can be interpreted as ‘readings’ of offenders and offences. As historian Jenny Coleman writes, ‘the press […] in the Victorian period became the context within which people derived their sense of the outside world.’75 Newspaper reports can be read alongside Capital Case Files to reveal where the press embellished or omitted details, and it is in the embellishment that I am most interested. Joy Wiltenberg writes of the value of exaggerated press coverage to cultural history, suggesting ‘the essence of these accounts lay less in factual accuracy than in emotional impact’.76 Exaggerations are points of cultural interest, particularly where journalists added details regarding a defendant’s purported mental state in order to sell more papers or solicit sympathy for particular prisoners. Newspaper articles, when read against the grain, lend insight into the way citizens constructed narratives of mental ill-health in criminal trials. The use of petitions to evidence ordinary opinions on criminal justice and mental illness has potential pitfalls, with some arguing that they cannot be taken as anything more than a stance against the death penalty.77 However, the historiography of activism in Australia persuasively outlines how colonists communicated personal and political demands of governments through written texts as a routine practice. This dissertation argues that petitions and letters contained commentary and purpose beyond a blanket protest of the death penalty in highlighting the confidence contained in these articulations that were preferred within a culture of political participation. The nineteenth century saw the transformation of collective social action, particularly in the use of petitioning in England, where Jenny Coleman, ‘Incorrigible Offenders: Media representations of female habitual criminals in the late Victorian and Edwardian press,’ Media History 22, 2 (2016): 143-158. 75 Coleman, ‘Incorrigible Offenders,’ 145. 76 Joy Wiltenberg, ‘True Crime: The origins of modern sensationalism,’ American Historical Review 109, 5 (2004): 1393. 77 As expressed to the author over several years of Australian Historical Association conferencing. 74 26 this mode of activism had existed for centuries as a legitimate, constitutional right.78 Jess Horton describes the process of ‘accommodation’ utilised by Aboriginal men and women, whereby they adopted the language and religious motifs of their colonisers in letters and petitions outlining personal demands to colonial administrators.79 The last decades of the century saw the petition as the preferred method of organised movements, particularly with industrial labour movements and the ‘Monster Petition’ of the first-wave suffrage movement.80 Letters and petitions surface in histories of specific crimes or specific trials; rarely are they viewed laterally as interlinked fragments of a broader history. The petitions written on behalf of convicted criminals were not extraordinary in their mode of activism, but rather should be situated within a broader colonial tradition. This dissertation asserts that the contents of these petitions are valuable and deserving of historical consideration, containing as they did lay perspectives on criminal justice. I examine convicted cases and post-trial decisions only. Convicted cases present an advantageous avenue through which to investigate notions of criminal responsibility and mental capacity. Convicted cases received a guilty verdict, and where an insanity defence had been put forward, this defence had failed. Despite this guilt having been established, post-trial activism contended that certain offenders were nevertheless not fully responsible for their actions due to mental affliction and should be treated accordingly. The question turned from guilt or innocence to the extent to which the offender should be punished. The uneven public, governmental and medical responses to this question demonstrates where parties apportioned insanity claims to advocate for reduced or increased sentences. Henry Miller, ‘Petition! Petition!! Petition!!! Petitioning and political organization in Britain, c. 1800-1850,’ in Organizing Democracy: Reflections on the Rise of Political Organizations in the Nineteenth Century, ed. Henk te Velde and Maartje Janse (Palgrave, 2017): 50; Paul A. Pickering, “And Your Petitioners & c’: Chartist Petitioning in Popular Politics 1838-48,’ The English Historical Review 116, 466 (2001): 368-388. 79 Jessica Horton, ‘Rewriting Political History: Letters from Aboriginal people in Victoria, 1886-1919,’ History Australia 9, 2 (2012): 162. 80 Michael Quinlan, Margaret Gardner and Peter Akers, ‘A Failure of Voluntarism: Shop Assistants and the Struggle to Restrict Trading Hours in the Colony of Victoria, 1850-1885,’ Labour History 88 (2005): 165-182; John Thompson, Documents That Shaped Australia: Records of a nation’s heritage (Sydney: Pier 9, 2010); Clare Wright, You Daughters of Freedom: The Australians who won the vote and inspired the world (Melbourne: Text Publishing, 2018), 34-5. See also Meredith Dobbie, Ruth Morgan and Lionel Frost, ‘Overcoming Abundance: Social Capital and Managing Floods in Inner Melbourne during the Nineteenth Century,’ Journal of Urban History 46, 1 (2020): 33-49. 78 27 Chapter Outline Chapters are divided by crime category for ease of analysis. Chapter One provides an overview of the legal system, medical profession, and social world of the late-nineteenth century to lend important context to the qualitative analysis that follows. Due to the bulk of murder cases, these are separated over four chapters. Infanticide did not operate as a separate offence to murder in Victoria until 1949, yet due to the distinctly gendered nature of perpetration and punishment, it is the exclusive focus of Chapter Two.81 This chapter explores insanity and reproductive crime in late nineteenth century Victoria, with particular focus on the case of Rosanna Plummer in 1884. Chapter Three surveys maleperpetrated homicides from 1880 to the First World War, discussing how criminological theory, the popular notion of ‘temporary insanity’ and rural activism impacted post-trial justice for men who killed intimate partners or family members. Chapter Four examines the eight female-perpetrated homicides convicted in the period, these cases falling between 1880 and 1916. This chapter discusses the ways in which insanity was attributed to female offenders and the relative lack of sympathy for women who killed victims that were not infants. Chapter Five then examines male-perpetrated homicides during the First World War and in the interwar period, discussing returned soldiers as unique criminal subjects, developments in psychiatry and the surfacing of psychoanalysis in post-war society. Chapter Six focusses on insanity claims presented in the sexual crimes of rape, carnal knowledge and buggery, demonstrating the close links between ideas of sexuality and mental abnormality throughout the period. Crimes Act 1949 (Vic), s 4, 1. Victoria followed England’s 1922 legislation. See Tony Ward, ‘The Sad Subject of Infanticide: Law, Medicine and Child Murder, 1860-1938,’ Social and Legal Studies 8, 2 (1999): 163. 81 28 Chapter One Psychiatry, Politics and the Criminal Law: Establishing the Parameters Under the treatment scientific men receive in our Courts and from our administrators, and also owing to the state of feeling amongst the public, it is asking a great sacrifice from scientific men to interfere in these cases. But there are those who prefer truth to popularity. Marshall Lyle to the Governor of Victoria, October 1894 I fancy when the pendulum of the public mind, excited to an unusual beat owing to the circumstances of this case, swings back. Mount Alexander Mail, 12 Aug 1884, 3 Marshall Lyle was an Irish lawyer living in Melbourne who, in the last decade of the nineteenth century, devoted himself to the moral questions of insanity and responsibility as they arose in the city’s high-profile capital cases. His views on forensic psychiatry and capital punishment were intertwined; as the Australian correspondent for the Howard Association for Legal Reform, he was a staunch advocate for prison reform and the abolition of capital punishment.1 He penned emphatic letters to the Governor of Victoria following the conviction of prisoners in the 1890s, often being the only person to voice support for a handful of publicly abhorred offenders. 1 The Howard Association was an English international association established in 1866 that lobbied for penal reform and the abolition of capital punishment. The Association continues its advocacy for offender rights to this day. According to Lyle, Western society had entered a new era of scientific progress, wherein insane criminals should be treated by medical men rather than legally murdered by the State. Lyle stressed the importance of medical experts in criminal matters, given the ‘large number of insane persons’ in Victoria’s prisons, and lamented the ill-feeling expressed by lawyers and the public toward psychiatrists who testified. ‘Justice’, he wrote in an impassioned letter to the Governor in 1894, ‘depends not on the careless opinions or heated passions of the populace’.2 This chapter delineates the status of colonial psychiatry, the operation of the criminal law and the modes of public participation in the colony of Victoria so as to lend critical context to the case studies that follow. In addition, this chapter considers the professional domains of lawyers, judges and psychiatrists, as well as situating these professionals within their own social worlds as middle-class men. Victorians, political participation and capital punishment Public participation in political matters, as well as the status of professions such as psychiatry, can be attributed to the relatively new status of the settler colony that was proclaimed separate from New South Wales in 1851. The period 1851-1870 was marked by an influx of migration from successive gold rushes, and as the fervour for gold waned, the settler town of Melbourne accommodated the considerable population of migrants who chose to settle there.3 Within three decades the metropolis boasted 2 Marshall Lyle to the Governor of Victoria, Oct 1894, Public Record Office of Victoria (PROV), R v Needle VPRS 264 P0001/2. Printed verbatim in ‘The Condemned Woman,’ Herald, 4 Oct 1894, 3; see also ‘The Theory of Insanity: Mr Marshall Lyle Writes,’ Herald, 10 Oct 1894, 1. 3 Geoffrey Blainey, A History of Victoria (Cambridge: Cambridge University Press, 2013), 43-68; N Butlin, Investment in Australian Economic Development, 1861-1900 (Cambridge: Cambridge University Press, 2013), 181-210; J McCarty, ‘Australian Capital Cities in the Nineteenth Century,’ in Urbanization in Australia: The Nineteenth Century, eds J McCarty and B Schedvin (Sydney 1974); Alan Ross Hall, The Stock Exchange of Melbourne and the Victorian Economy, 1852-1900 (Canberra: 30 prosperity and a coveted position within the constellation of the British Empire, this success owing to rapid industrialization made possible by the strength of mining and agricultural exports such as wool and flour, and a lack of reliance on expensive imports.4 In the last decades of the century work culture in the city moved away from crude manufacturing to middle-class occupations in finance, public administration and communications.5 The city rose to global prominence in the 1880s, hosting the Melbourne International Exhibition in 1880 and the even more ostentatious Centennial International Exhibition in 1888. The planning and reception of such international events sought to consolidate the status of the city as one of bourgeois cosmopolitanism, an aspiration that clashed with the crime, poverty and squalor that continued unabated in back alleys and urban pockets. Police efforts to close brothels on Stephen Street, later renamed Exhibition Street, are emblematic of the broader efforts of urban reform that did not necessarily address social issues but displaced them. 6 New genres of investigative journalism and crime fiction drew attention to the existing class inequalities within Melbourne.7 Persistent as problems of crime and poverty remained, visitors and reporters noted the comparatively liberal politics present in the colony compared to cities in Europe. This was in part due to the demographic makeup of the colony that had been founded on the migration of young, middle-class men who sought to improve their lot Australian National University Press, 1968), 53; Geoffrey Blainey, The Rush That Never Ended: A History of Australian Mining (Melbourne: Melbourne University Press, 1963), 97-102. 4 Graeme Davison, The Rise and Fall of Marvellous Melbourne (Melbourne: Melbourne University Press, 1978); T. G. Parsons, ‘Some Aspects of the Development of Manufacturing in Melbourne 18701890,’ (PhD dissertation, Monash University, 1970). 5 Davison, Marvellous Melbourne, 9. 6 Chris McConville, ‘The location of Melbourne’s prostitutes, 1870-1920,’ Australian Historical Studies 19, 74 (1980): 86-97. 7 John Stanley James, The Vagabond Papers: Sketches of Melbourne Life in Light and Shade (Melbourne: George Robertson, 1876); Fergus Hume, The Mystery of a Hansom Cab (Melbourne: Fergus Hume, 1886). 31 on the goldfields and later wound up in municipal politics. Migrants had brought the political influences of English Chartism, Irish and Scottish nationalism and ideals of the American Civil War to the Victorian goldfields.8 As Stuart Macintyre notes, these influences and the lack of ‘familiar enemies’—an established church, hereditary aristocracy and large vested interests—enabled a form of liberalism in the colony that would have been considered radical in England.9 Of the 1870s and 1880s, Alfred Deakin would later reflect that ‘the tide of political life ran much more fiercely than at any subsequent period’, and it was in these decades that significant reforms were implemented.10 In May 1877, Premier Graham Berry, a staunch opponent of the colony’s land-owning oligarchy, introduced a land tax aimed at breaking up the large estates and forcing tax from pastoralists who continued to evade tax duties in Victoria’s North.11 During his time as Premier between 1883-1886, James Service advocated for a democratic, sectarian state, established the Public Service Board and the Railways Commission to improve public services, legalized trade unions and saw the passing of the 1885 Factories and Shops Act that ensured standards for minimum wage and safe working conditions.12 Such political change was contingent on the pressure of See Paul A. Pickering, ‘Ripe for a Republic’: British radical responses to the Eureka stockade,’ Australian Historical Studies 34, 121 (2003): 69-9; Clare Wright, “New Brooms They Say Sweep Clean’: Women’s political activism on the Ballarat Goldfields, 1854,’ Australian Historical Studies 39, 3 (2008): 305-321. 9 Graeme Davison, John Hirst and Stuart Macintyre, eds, The Oxford Companion to Australian History (Melbourne: Oxford University Press, 2001), 388-9. 10 JA La Nauze and RM Crawford, eds., A Crisis in Victorian Politics, 1879-1881 (Melbourne: Melbourne University Press, 1957), 10. 11 Paul Strangio and Brian Costar, eds., The Victorian Premiers: 1856-2006 (Sydney: The Federation Press, 2006), 58-60. 12 Alfred Deakin, ‘Trades Unions Bill’, Debates Victorian Legislative Assembly, 9 October, p. 1727, cited in Geoffery Serle, The Rush to be Rich: A history of the colony of Victoria 1883-1889 (Melbourne: Melbourne University Press, 1971), 105. 8 32 Victoria’s labour unions, of which there were at least 75 in the colony by 1890, with a combined membership of 40,000 skilled and unskilled workers, men and women.13 The system of capital punishment was yet another political domain where individuals and groups across the gentry, merchant and labourer classes rallied to make their voices heard. The Victorian Branch of the British Howard League for Penal Reform was established in 1895 to promote the prevention and reduction of crime through humanitarian treatment of offenders.14 The Howard League seemingly sent objections to the Governor indiscriminately, their main priority being the abolition of capital punishment. Other organisations such as the Victorian Trades Hall Council, the Victorian Women’s Suffrage Society, and later, the Socialist Party of Victoria, while also being anti-death penalty, were more selective in the cases they advocated for commutation of sentence. Church ministers such as Albert Abbot of the Free Christian Church wrote to the Executive in certain cases, as did the Board for the Protection of Aborigines in cases of Aboriginal offenders. On the more individual level, men and women who knew the offender or were moved to action by his or her story carried petitions up and down streets in Collingwood, Fitzroy, Carlton, Richmond and Windsor, or stood at major thoroughfares in the city, at the entrances to railway stations or out the front of Cole’s Book Arcade on Bourke Street. One potential criticism regarding the validity of petitions as an index to historical opinion in criminal trials proceeds from the assumption that citizens stopped to lend a signature in the street without knowing much, if anything, about the case in question. In this cynical view we lose sight of the real communication and the political Keith Pescod, ‘Irish Participation in Victoria’s union movement, 1850-1900,’ Australasian Journal of Irish Studies 11 (2011): 15; Serle, The Rush to be Rich, 95. 14 See ‘Howard League for Penal Reform’ records c. 1923-1967, State Library of Victoria, Australian Manuscripts Collection, MS 11553. 13 33 participation Victorians took upon themselves in explaining cases and ushering passersby to sign, and in ordinary people offering statements of solidarity in their signage. Petitions for infanticide offenders saw working-class mothers writing the number of children they had borne next to their name, while servicemen signed their service numbers in petitions for soldiers. Loved ones wrote letters in unsteady, seldom practiced prose; sons and daughters wrote statements for the family members who could not read or write. Individual activism did not always stem from familial ties, evidenced in the case of Gray (1883) where locals approached the prisoner’s son to sign their petition for his commutation, only to have the son reply: ‘I wouldn’t sign my name onto the back of my father’s neck’.15 Middle-class reporters and politicians mocked petitioners in capital cases, dismissing their activism in classist overtones as being uninformed and proceeding from a base sentimentality. Journalists commented with consternation on the growing phenomenon of petitioning in capital trials and what it meant for governance that ‘a particular excitement should control the function of justice’.16 The reduced sentences that petitioners secured for infanticide offenders throughout the 1880s sparked vehement rhetoric in newspapers, where not only journalists but judges, lawyers, politicians and doctors wrote op eds under pseudonyms. An anonymous piece published in 1890 noted the ‘tendency to explain away the commission of a great crime as an act of temporary insanity’, writing: It is perfectly open to anyone to argue that the death sentence should be abolished, or that infanticide should be no longer punishable. All this is within the right of every citizen. But it is a different thing to ask that the decision of the court of law and the sentence ordered by the statute book should be set aside on merely sentimental grounds, and at the request of people who in all probability have no followed the case closely… for otherwise we might as well 15 16 Petition to the Governor, R v Gray (1883) VPRS 264 P0000/10. ‘Melbourne News’, Mount Alexander Mail, 12 Aug 1884, 3. 34 dispense with the jury and take the verdict of the class of petition signers. The sentimentalists are well meaning, but society is not built on their lines.17 This stereotype was so persuasive and tinged with derision for the working class that a Member of Parliament, in forwarding a petition from his constituents to the Governor wrote a disclaimer on the demographic of the petitioners: ‘The petitioners are not of the class that usually sign petitions of this character, but they are a level-headed lot of farmers, who are acquainted with the circumstances’.18 Conservatives cast efforts of post-trial activism, so often caught up with social movements advocating legal reform, as rowdy, irrational, and contradictory to the processes of governance. This characterization was not helped by the exhibitions of enthusiasm all manner of classes demonstrated in high-profile capital cases. The Victorians, both in England and in the colonies, were obsessed with crime. There existed a culture of public voyeurism with the physical witnessing of the criminal trial; middle-class women crowded the court galleries in the trials for serious murder and crowds flocked to see replicas of local criminals in the Waxworks that operated on Bourke Street from 1857 to 1910.19 However, the extent of working-class participation in petitioning can be somewhat delineated through an examination of literacy and the culture of reading. While the gold rushes had a levelling effect across society in the 1850s, the Education Act (1872) had arguably more radical egalitarian effects in legislating the compulsory state-wide education of all children over six until the age of twelve.20 Historians point to the Education Act as a bourgeois effort to reduce youth crime by educating working- No title, no author (under ‘correspondence’, but quite long pieces with no signatures or addresses to the editor), Argus, 10 Apr 1890, 4. 18 R v Einsporn (1914), VPRS P0000/29. 19 Mimi Colligan, ‘Waxworks shows and some of their proprietors in Australia, 1850s-1910s,’ Australasian Drama Studies 1, 34 (1999): 87. 20 Blainey, A History of Victoria, 61. 17 35 class children into a middle-class mould, and while this was likely the case, the Act translated into tangible benefits for children in keeping them from dangerous work and granting education to girls.21 State-wide literacy was at 51 percent in 1881 (those who could read and write), and while this was low compared to other Western nation states, the act of reading colonial newspapers cannot be understated in accounting for the public following of capital trials.22 Newspapers were more popular than books in colonial Melbourne, their stories read aloud by the literate and their contents carried on by word of mouth.23 Under the stewardship of David Syme, The Age held the monopoly as the most-widely circulated newspaper in Victoria between 1850 and 1900.24 A strong contender, The Argus catered to middle-class conservatives, The Daily Telegraph to the Evangelicals, and a great number of local, rural newspapers such as the Ovens and Murray Advertiser, the Ballarat Star and the Gippsland Times delivered international news alongside notices of local dances and weddings.25 Papers often acted as a public forum on capital cases, bringing together the opinions of labourers, doctors and even esteemed judges who wrote under Roman-style pseudonyms such as ‘Justinian’, B. Bessant, ‘Free, Compulsory and Secular Education: The 1872 Education Act, Victoria, Australia,’ Paedagogica Historica 24, 1 (1984): 5-25; Peter Meadmore, ‘Free, compulsory and secular? The reinvention of Australian public education,’ Journal of Education Policy 16, 2 (2001): 113-125. 22 Census of Victoria, 1881 (Melbourne: Government Printer, 1883); ‘Vital statistics,’ Argus 5 Dec 1881, 9. Literacy rates were between 85-90 percent in Prussia by 1871, 90 percent in Ontario, Canada in the 1870s and at 95 percent in England by 1895. See Harvey J. Graff, The Legacies of Literacy: Continuities and Contradictions in Western Culture and Society (Indiana: Indiana University Press, 1987), 286, 347; David Vincent, Literacy and Popular Culture: England 1750-1914 (Cambridge: Cambridge University Press, 1989), 54. 23 Blainey, A History of Victoria, 94. 24 Elizabeth Morrison, ‘David Syme’s role in the rise of the Age,’ Victorian Historical Journal 84, 1 (2013): 17. See also Elizabeth Morrison, David Syme: Man of the Age (Melbourne: Monash University Publishing, 2014). 25 Blainey, A History of Victoria, 95; David Dunstan, ‘The Argus: The life, death and remembering of a great Australian newspaper’ in Argus: The Life and Death of a Great Melbourne Newspaper 18461957, ed. Muriel Porter (Melbourne: RMIT Publishing, 2003), 3-15. 21 36 ‘Damocles’ and ‘Figaro’.26 Papers printed information on petitions and deputations organised by activists post-trial. As the following chapters will show, newspaper coverage was the lens through which colonists constructed their own views and understandings of capital cases. Reactions to trials were not often responses to the trials themselves, but trials as they had been written into narratives by the press. Close reading of capital case files reveals where journalists added or embellished details to sell papers. The historian Rachel Weaver demonstrates how the separate genres of detective fiction and crime journalism intertwined in Melbourne, bleeding together in a ‘self-conscious intertextuality’ on the part of journalists who could rely on readers’ appetite for the tropes of crime fiction.27 The ‘New Journalism’ of the late-nineteenth century saw more emphasis on narrative style, ‘human interest’ and the investigative role of the reporter. Newspapers described crime in sensationalist terms—Melbourne was besieged by ‘crowds of youthful criminals’, an ‘army of murderesses’— that often did not reflect the reality of serious crime but could inform very real fears and perceptions of unsafety among the populace.28 26 Sir Redmond Berry wrote for Port Phillip Herald under the name of ‘Malwyn’ until the Argus exposed his identity. Dr James Neild wrote as a theatre critic for the Australasian under ‘Jacques’ and later, ‘Tahite’. See ‘The Supply of Gas,’ Argus, 30 Aug 1880, 6; ‘Additional Police Magistrates,’ Argus, 28 Feb 1882, 6; ‘In the Barber’s Shop,’ Telegraph, 2 Aug 1884, 5. 27 Rachel Weaver, ‘Reflecting the detectives: Crime fiction and the new journalism in late-nineteenth century Australia,’ Australian Literary Studies 22, 1 (2005): 63. See also Rachel Weaver, The Criminal of the Century (Melbourne: Australian Scholarly Publications, 2006); Rosalind Smith, ‘The case of Frederick Deeming: The true crime archive as publication event,’ Southerly, 72, 2 (2012): 56-73. 28 ‘The Rising Generation of Criminals,’ Weekly Times, 21 Aug 1880, 8; Argus, 21 Dec 1870, 4. 37 Criminal Law Processes Within the Colony ‘Lay’ readings of madness were not only issued by journalists or the interested wider public but were contained in the reports and statements of those who administered criminal justice within the colony: police, lawyers, judges and jurors. The roles and social demographic of each profession needs to be understood in order to identify the class and gendered relations that operated between defendants and the arms of law they encountered, as well as the ways in which lay readings of madness were embedded in official documentation pertaining to a capital trial. Within the criminal justice system there were two areas in which working-class opinions on madness were involved in due process, the first being the Victorian police. Under the fifty-year leadership of Chief Commissioner Hussey Malone Chomley from 1852, the education, training and wages within the force were considerably improved and made the vocation an attractive option to working-class men. 29 Police included local hearsay regarding the ‘half-wittedness’ of defendants, and on occasion included their own observations of mentally abnormal behaviour in their reports that, in cases of conviction, were also forwarded to the Executive Council. 30 Their voices constitute another site of predominantly working-class opinion regarding mental states that were considered by the Governor and his cabinet post-trial. More notably, the men empanelled on juries played a crucial role in reading the defendant’s speech and acts in weighing up the legal arguments that had been submitted at trial. Any free man aged between twenty-one and sixty living within fifty miles of Robert Haldane, The People’s Force: A History of the Victoria Police (Melbourne: Melbourne University Press, 1995), 115. See also Dean Wilson, The Beat: Policing a Victorian City (Melbourne: Circa, 2006); David Ballek, ‘Upholding the Right: An historical analysis of Victoria Police involved fatal encounters, 1835-1995,’ (PhD dissertation, University of Southern California, 1998), 70. 30 See for example R v Wilson (1906) VPRS 1100 P0002/3. 29 38 the court, who received an income of thirty pounds per year or owned property worth three hundred pounds, could serve on a criminal trial jury.31 Jury members were not always unknown to defendants; empanelment of juries in rural communities proved especially difficult and time-consuming given the likelihood of jurors having knowledge or some acquaintance with the accused.32 Juries were made up of workingclass professions such as miners, farmers, saddlers and boot makers, and closer to the city, could also include middle-class professions such as clerks, architects and accountants.33 There is some evidence to suggest jury service was unpopular, most likely due to the loss of income sustained during the trial. Jurymen living within five miles of the court were paid ten shillings per day, and those living beyond that radius compensated at the rate of one shilling per mile travelled for one way only.34 However, disgruntlement and disinterest did not necessarily work against defendants in capital trials, where juries erred toward sympathy when faced with the prospect of enacting a death sentence. Critics of the democratic jury system lamented that jury decisions were being made on the basis of ‘feeling rather than reason’, part of an ongoing debate in the press regarding the effectiveness of juries in following judge’s explanations of the law.35 Except for policemen and jurors, the majority of actors within the criminal justice system were middle-class. Barristers who had been admitted to practice in the United Kingdom were permitted to practice in Victoria, although from the 1860s 31 Women would only be admitted to Victorian juries in the 1950s. ‘Jury Service in Victoria,’ Final Report of the Parliament of Victoria Law Reform Committee (Melbourne: Government printer, 1997), 46. 32 Alana Piper and Mark Finnane, ‘Defending the Accused: The impact of legal representation on criminal trial outcomes in Victoria, Australia 1861-1961,’ The Journal of Legal History 38, 1 (2017): 39. 33 ‘The Occupations of the Jury,’ Ballarat Star, 19 Dec 1882, 6. 34 ‘Payment of Jurors,’ Kerang Times, 15 July 1887, 2. 35 Kyneton Observer, 22 Apr 1882, 2; ‘An Eccentric Jury,’ Herald, 25 Jul 1889, 2. 39 increasing numbers of lawyers matriculated through the University of Melbourne. Lawyers remained a middle-class, highly educated group of men, with entry requirements mandating written exams in Greek, Latin, mathematics, ancient history, English history and universal history as well as law.36 As a result the national background of counsel remained predominantly English, with high numbers of Irish and Scottish barristers, yet only a handful from other European nations.37 Defendants charged with murder and sexual offences were likely to be represented by legal counsel. The state would only provide free legal counsel for defendants in the twentieth century under the Poor Prisoners Defence Act (1916), the scope of beneficiaries expanded under the Poor Persons Legal Assistance Act (1928).38 However, nineteenth-century defendants charged with capital crimes were permitted to apply for state assistance in paying for legal fees.39 Alana Piper and Mark Finnane’s longitudinal study of Victorian Supreme Court trials from 1861 shows a positive relationship between legal representation and favourable trial outcomes for defendants in the nineteenth century. In convicted cases, defended accused were 1.5 times more likely to be found convicted of a lesser offence, and where they were convicted on the capital charge, 1.6 times more likely to be recommended to mercy by the jury.40 The reliance of defendants on loss of memory or ‘blank minds’ in cross-examination may have been a defence counsel strategy to amend for confessions or statements uttered in Women were not permitted to practice until 1903. Richard Harrison, ‘The Legal Profession in Colonial Victoria: Information held in records of admission by the Public Record Office Victoria,’ Provenance 13 (2014): 63. 37 Harrison, ‘The Legal Profession,’ 64. 38 Poor Prisoners Defence Act 1916; Poor Persons Legal Assistance Act 1928; J A Lynch, ‘Legal Aid and the Legal Profession in Victoria 1841-1995,’ (PhD dissertation, La Trobe University, 1996): 99140. 39 Piper and Finnane, ‘Defending the Accused,’ 29; C Field and Jeff Giddings, ‘A History of Legal Aid in Victoria’ in Legal Aid in Victoria: At the Crossroads Again, ed. Jeff Giddings (Melbourne: Fitzroy Legal Service 1998), 21. 40 Piper and Finnane, ‘Defending the Accused,’ 34. 36 40 hospitals, gaol cells or elsewhere that defendants may not have known would later be used against them in court. The judiciary was a bastion of power in colonial life. Supreme Court judges were often born into families of some rank or money, matriculated from colleges in the United Kingdom and were enthusiasts of literature, classical history and the human sciences. Several judges of the Supreme Court lived two lives, heavily involved in cultural organisations and charities in their personal lives while striving for rigour and fair punishment in court.41 Chief Justice William Stawell took great interest in the welfare of the colony and served as president of the Melbourne Hospital, the Victorian Deaf and Dumb Institution and the Benevolent Asylum, yet on the bench he remained harsh and ‘did not flinch’ in recommending the death penalty in certain cases.42 In convicted cases for murder, judges had no choice but to pass sentence of death. In convictions for other capital crimes however, judges could opt to ‘record death’, a power of discretion that signalled their opinion that the case should receive mercy and a commuted sentence.43 Justice Edward Williams was ostensibly a ‘hanging’ judge, possessing a high conviction rate and rarely recording death.44 Justices Edward Williams, William à Beckett and William Stawell yielded high rates of conviction, while Justices Henry Hodges and Edward Holroyd were associated with high acquittal rates, and, in the event of convictions, low execution rates.45 Peter Ryan, ‘Barry, Sir Redmond (1813-1880)’ Australian Dictionary of Biography, National Centre for Biography, Australian National University, accessed online 4 Sep 2020; E. G. Coppel, ‘à Beckett, Sir William (1806-1869)’, Australian Dictionary of Biography, National Centre for Biography, Australian National University, accessed online 4 Sep 2020; ‘Discharged Prisoners Aid Society,’ Argus 29 Aug 1872, 7. 42 Coppel, ‘à Beckett, Sit William.’ 43 Richard Douglas and Kathy Laster, 'A Matter of Life and Death: The Victorian Executive and the Decision to Execute 1842- 1967,' Australian and New Zealand Journal of Criminology 24, 2 (1991): 148. 44 Douglas and Laster, ‘A Matter of Life and Death,’ 150. 45 Douglas and Laster, ‘A Matter of Life and Death,’ 150. 41 41 The Capital Case Files disclose the intimate opinions of judges in their notes to the Executive Council, offering insightful estimations of prisoners who brought insanity or mental instability as a defence. Judges were more likely to urge caution regarding evidence brought by medical witnesses, and more likely to presume insanity and request further enquiries where no medical evidence was submitted at trial. The former was a diligent review of medical evidence according to the rule of law; the latter was a measure to ensure the state did not execute someone who could legally be deemed insane.46 In the murder trial of John Gray (1884) Chief Justice Stawell wrote with some emotion: ‘I have never in my experience had to try such a case. A brave courageous woman murdered by someone said to be her husband.’47 Stawell argued that even if Gray had acted under the delusion of his wife’s adultery, as the defence claimed, this would not absolve his responsibility for the crime.48 He insisted that judges needed to ‘act upon the evidence and decide upon the facts’ of cases such as these. 49 However, other cases saw judges raising the question of insanity where no formal insanity defence or medical evidence had been submitted in court. Justice Webb recommended that an enquiry be made into the mental health of Michael O’Shea after his conviction in 1888, despite no insanity defence having been brought at trial, and with no knowledge of O’Shea’s family history or medical background. On the basis of Webb’s observations in court, he wrote: ‘It appeared to me that he was hardly in the possession of his right faculties’.50 Judges, then, could constitute a real hindrance to the success of insanity cases where they believed medical evidence had not satisfied legal 46 Legislated in the English Criminal Lunatics Act (1884) s 2(1), (4) and s3. See also J. D. Feltham, ‘The Common Law and the Execution of Insane Criminals,’ Melbourne University Law Review vol. 4 (1964): 434-475. 47 R v Gray (1883) VPRS 264 P0000/10. 48 R v Gray (1884) VPRS 264 P0000/10. 49 R v Gray (1884) VPRS 264 P0000/10. 50 R v O’Shea (1888) VPRS 264 P000/12. 42 requirements. This belief would be communicated to the trial jury in the Judge’s closing summary and could have great influence on trial verdicts. Conversely, where no medical evidence was raised, trial judges were quite comfortable in offering their own observations of the prisoner and recommending medical examinations post-trial. Psychiatrists Beyond common law processes, legislation such as the Lunacy Act (1890) reinforced the notion that non-experts could identify insanity in offenders and call for medical examination post-trial. Members of the public invoked section 6 of the Lunacy Act (1890) in their petitions for the insanity of offenders, this stipulation providing that, where any person is detained in gaol on a charge of an offence, having been denied bail or imprisoned under sentence ‘shall appear to be insane’, it was lawful and required that those overseeing custody call two medical practitioners to examine the prisoner.51 Crucial to the arguments of the public was the subsequent stipulation that, where the two medical practitioners both pronounced the prisoner as insane, the Crown was bound by law to transfer said prisoner to a lunatic asylum and prohibited to proceed with a sentence of execution.52 In allowing this procedure for any prisoners who ‘appeared’ insane, the Lunatic Act upheld the importance of ‘manifest madness’ in the administration of justice and protection of ‘mad’ persons post-trial. Criminal insanity remained open to ordinary members of the public to identify, and for the Executive to ignore the insanity claims they put forward in petitions was to disregard the law and 51 52 Lunacy Act 1890, s 6; R v Johnston (1891), VPRS 264 P000/19. Lunacy Act 1890, s 6. 43 contravene the English common law principle that insane persons should not be executed.53 Through these claims, the public could hold the Executive to account. The Executive was bound to follow the verdict of the two medical practitioners, yet under the 1890 Lunacy Act and much of the lunacy legislation in the colonial period, a ‘medical practitioner’ was any legally certified medical doctor and did not need any specialised training in psychiatry. The same definition applied to medical witnesses in criminal proceedings, meaning that ‘experts’ who testified in relation to an insanity defence or the mental state of a prisoner post-trial could be close to the status of ‘laymen’ themselves. While a witness was often questioned on their professional experience in regard to insanity and asylum doctors were preferred in these cases, this was yet another procedural oversight that allowed for ‘lay’ testimony. Compared to the psychiatrists of England and France, colonial doctors were comparatively thin on the ground despite penal and institutional provisions for the mentally ill since the beginning of British colonization.54 Any legally certified medical practitioner could certify insanity and admit patients to a lunatic asylum, just as any legally certified medical practitioner could testify regarding mental states at trial. Doctors who specialized in mental disorders remained rare until the twentieth century, often siloed from society through their work within the lunatic asylum system. The colonial lunatic asylum was constructed in the image of its European origins, striving to demonstrate humanitarianism, rehabilitation, and scientific progress. As part of the 53 English Criminal Lunatics Act (1884) s 2(1), (4) and s3. On early colonial provisions for the mentally ill, see James Dunk, Bedlam at Botany Bay (Sydney: NewSouth, 2019); J. P. Parkinson, ‘The Castle Hill Lunatic Asylum (1811-1826) and the origins of eclectic pragmatism in Australian psychiatry,’ Australian and New Zealand Journal of Psychiatry 15, 4 (1981): 319-322; Terrence Gordon Smith, “With tact, intelligence and a special acquaintance with the insane’: A history of the development of mental health care (nursing) in New South Wales, Australia, Colonisation to Federation, 1788-1901,’ (PhD dissertation, University of Western Sydney, 2005): 5098. 54 44 broader Public Works project in Victoria from the 1850s, six lunatic asylums were erected in the state between 1865 and 1879, with Yarra Bend (established in 1848), Kew and Carlton lunatic asylums catering to Melbourne and the inner suburbs, and rural asylums catering to former gold rush towns at Ararat, Beechworth, Ballarat and Sunbury.55 However, by the last decades of the century the vision of ordered, careful Victorian management did not match the reality in these institutions, most of which were overcrowded, under-staffed and financially dependent on the government.56 Staff records reveal that just two medical officers and one medical Superintendent were tasked with overseeing asylum populations of upwards of 800 patients.57 As a result, patients would have limited access to doctors after the initial few months, the medical entries in their case books often listed years apart.58 In the popular imagination the lunatic asylum was suffused with apprehension of the insane ‘other’, rendering the occupation of asylum doctor as provincial and unpopular. Migrant doctors gravitated toward the white-collar medical district in Collins Street rather than the austere, dilapidated asylums on the outskirts of the city that many considered a career of last resort.59 Melbourne did not have so much of a broadside culture as London did, yet Richard Egan Lee’s Police News well made up for this in its exaggeration of the crimes and institutional horrors of Melbourne. A number of prints in the 1870s stoked fears regarding civil liberties and abuse of patients, one showing a husband placing his wife into a sack to be transported by cart to Yarra Bend Kenneth C Kirkby, ‘History of Psychiatry in Australia, pre-1960,’ History of Psychiatry 10, 38 (1999): 197-198. 56 Report, Royal Commission on Asylums 1888. See also Catharine Coleborne, Reading Madness: Gender and difference in the colonial asylum in Victoria, Australia, 1848-1888 (Perth: API, 2007). 57 ‘Return,’ Victoria Government Gazette, 383-5. 58 Daily care duties were undertaken by asylum attendants. See Lee-Ann Monk, ‘Working in the Asylum: Attendants to the Insane,’ Health and History 11 (2009): 83-101. 59 Davison, Marvellous Melbourne, 99. 55 45 Asylum, another depicting asylum attendants dragging a patient by her hair and beating her with a stick.60 Due in part to the public concern regarding these allegations of patient mistreatment, the Government called for the Royal Commission on Asylums for the Insane and the Inebriate in 1884.61 Recommendations included regular inspection of asylums by independent bodies, including thorough review of medical staff and their qualifications.62 The small group of men who specialized in mental disorder and worked in the colony’s asylums from the 1860s onwards were generally of the same middle-class background to the judges and politicians of the period. William Beattie Smith, James Neild and John Fishbourne were born and educated in the United Kingdom before migrating to Australia. The interest in psychiatry may have been personal for Fishbourne, who reportedly had an epileptic son, while others were propelled by a purely intellectual curiosity. These doctors viewed science and art as dual, rather than contradictory interests. James Neild wrote as a theatre critic for the Australasian alongside his work as Victoria’s first government pathologist, while John Springthorpe collected art, fondly referred to his Collins Street home as ‘Camelot’ and, frustrated with the lack of empathy for soldiers returning with shell shock in the First World War, would pen a play about the malady. Beattie Smith’s career is a typical example of the trajectory these men made through the asylum system: between 1880 and 1900, he had worked as medical officer or superintendent at Ararat, Yarra Bend and Kew Asylums. ‘Horrors of Kew Asylum,’ Police News 1876, State Library of Victoria (SLV) PN18/03/76/00; ‘Sacking a Wife at Cape Schanck,’ Police News 23 June,1877, SLV PN23/06/77/00. 61 Kenneth C. Kirkby, ‘History of Psychiatry in Australia, pre-1960,’ History of Psychiatry vol. 10, no. 38 (1999): 199; See also Charles Brothers, Early Victorian Psychiatry (Melbourne: Government Printer, 1962). 62 Report, Royal Commission on Asylums for the Insane and Inebriate (Melbourne: Government Printer, 1886), cxlii. 60 46 The 1870s saw the beginnings of the medical profession as a consolidated group in Victoria, and a positive change in public perceptions of medical practitioners in general. From its establishment in 1835, the Port Phillip District had various professional medical groups, the Victoria Medical Association (1852, later the Medical Society of Victoria), local groups in Castlemaine, Mt Alexander and Ballarat, and the Medical Association of Victoria (1868), whose journal The Australian Medical Gazette (AMG) rivalled the Medical Society’s The Australian Medical Journal (AMJ). At midcentury the profession was marked by petty group rivalry, with the British Lancet horrified at the ‘very disunited state’ of the profession in Melbourne. 63 In 1879 James Neild and nine other doctors established the Victorian Branch of the British Medical Association (BMA), and with the NSW branch, their associated journal the Australasian Medical Gazette.64 The support of an English association, with crossbranch publications and free subscriptions to the British Medical Journal endowed the BMA with considerable professional advantages. The first Intercolonial Medical Congress, a conference of colonial doctors aimed at sharing knowledge within the discipline and confronting medical issues particular to the ‘Southern clime’, was held in Adelaide in 1887. Twenty-nine delegates from Victoria were in attendance.65 By 1892, the congress hosted lectures on ‘forensic medicine’ and ‘psychological medicine’ that came under the title of ‘public health’.66 Tara Sena-Becker, ‘In the Beginning: Victoria,’ More Than Just a Union: A History of the Australian Medical Association (Sydney: Faircount Media, 2012), 18. 64 Bryan Gandevia, 'Neild, James Edward (1824–1906),’ Australian Dictionary of Biography, National Centre of Biography, Australian National University, accessed online 25 July 2020. In 1906, after much sustained rivalry, the Medical Society of Victoria and the BMA decided upon formal amalgamation. 65 ‘Intercolonial Medical Congress,’ Argus, 31 Aug 1887, 6; ‘Intercolonial Medical Congress,’ Age, 31 Aug 1887, 5. 66 ‘Intercolonial Medical Congress of Australia,’ The British Medical Journal, 2, 1652 (Aug 1892), 475. 63 47 However, forensic psychiatry remained a niche field within the discipline of medicine. Asylum doctors were engaged with the practical challenges they faced daily in managing staff, wards and patients, as well as the paperwork that attended this work. Apart from the occasional article in the AMG or AMJ, they had little time to conduct rigorous clinical observations let alone write them up into papers. Where these doctors did have time, they devoted it to the particular strand of psychiatry that was their passion; for instance, Fishbourne set up the first day centre for mentally impaired children in Victoria—adjoined to his home in Moonee Ponds—in 1895.67 The handful of men who testified as medical experts at trial did so in several different capacities. Where they could spare the time to testify, doctors were called to serve as objective medical witnesses and sometimes could not or would not confirm insanity of the accused, even where they had been appointed by the defence. As Government Medical Officers from 1881 onwards, Dr Andrew Shields and Dr John O’Brien were called to inspect prisoners and testify their findings at or post-trial so as to inform verdict or posttrial sentencing. In some cases, such as the trial of James Johnston in 1891, the Executive empanelled a board of medical experts who had not testified at trial to provide additional evidence in order to inform whether the death penalty should be carried out. Methods of examination varied between doctors. Within the asylum system, it appears colonial doctors for the most part adhered to the classification system that the English doctors Bucknill and Tuke devised in 1858, namely referring to the categories of idiocy, imbecility, dementia, mania, melancholia, epilepsy and general paralysis of This school, named St Aidan’s, is estimated to have opened in 1897. Cliff Judge and Roma Emmerson, ‘Dr John Fishbourne: Vociferous Parent for the Handicapped,’ Medical Journal of Australia 2, 8 (1977): 255; Brian Williams, ‘Dr John Fishbourne: A pioneer in the evolution of special education in Victoria,’ Critical Studies in Education 31, 1 (1989): 72-90. 67 48 the insane (GPI). Even then, doctors rarely diagnosed patients in their asylum case books, recording instead a myriad of symptoms (e.g. ‘hears noises’, ‘broods’) that they observed through objective tests and interviews with asylum inmates. Colonial psychiatry followed the bare bones of English biological psychiatry, with many doctors supporting theories of hereditary taint and degeneration, while also acknowledging the influence of social environment.68 It followed that methods of examination varied among practitioners at trial. Many conducting physical examinations of the prisoner’s tongue and pupils, testing for paralysis of limbs or impaired speech. Some enquired into family history, reporting any falls in childhood or relatives committed to asylums. Others sat with prisoners and asked them questions on morality or religion, such as whether the offender agreed with the ten commandments. The lack of professional assertion outside of the highly stigmatised asylum, as well as the perceived incoherence of psychiatric methods, goes some way in explaining the derision of legal actors and the wider public towards doctors in court. Opinions printed in the colonial press demonstrate that at the heart of the problem was the inability of doctors to present as a unified body with concrete answers regarding criminal insanity. One writer commented on the alarming frequency of the insanity defence at mid-century compared to earlier decades, calling for a satisfactory definition of insanity by law as the dire conflict of opinion in these cases was perturbing: The lawyers disagree with the doctors, who do not agree amongst themselves. The judge, perhaps, has his own peculiar views, and the public have theirs. The jury are thoroughly perplexed and the prisoner profits by the confusion. […] The opinions entertained by medical men on insanity are so various that it is much to be regretted that they cannot be dispensed with altogether.69 68 Milton Lewis, Managing Madness: Psychiatry and Society in Australia 1788-1980 (Canberra: Australian Institute of Health, 1988). 69 Age, 30 Dec 1864, 4. 49 And this opinion was not limited to the public. A presiding judge made scathing comments regarding the medical witnesses for a murder trial in 1861: ‘it is lamentable to see medical men make such humiliating exhibitions of themselves as they too often do… their evidence more frequently confuses than assists the jury’.70 While doctors pushed for recognition in the pages of the Australian Medical Journal, they had little success in convincing the legal fraternity or the public that criminal insanity was their sole domain. The acceptance of psychiatry as a scientific practice and the establishment of unified medico-legal interests were relatively slow to arise in the colony of Victoria. While Eigen, Loughnan and others have made the case for a period of contention in England between the 1840s and 1880s, wherein doctors became routine specialist witnesses yet struggled to assert their authority among a confident lay public, this thesis holds that the corresponding period of contention occurred in Australia between the 1880s and 1930s.71 Studies suggest that other colonial sites such as Canada witnessed a similar delay.72 The map has only partially been filled out, and such studies illuminate the possibilities for cross-colonial comparisons that will aid our historical understandings of how the profession both hindered and shaped medico-legal developments across jurisdictions. It was only from the 1880s that psychiatrists in Victoria began to make inroads in the criminal courtroom, called upon more frequently to aid the Executive Council in sentencing decisions. This era saw increased migration 70 Coleborne, Reading Madness, 42. Arlie Loughnan and Tony Ward, ‘Emergent Authority and Expert Knowledge: Psychiatry and Criminal Responsibility in the UK,’ International Journal of Law and Psychiatry 37, 1 (2014): 25-36. 72 James E. Moran, ‘Mental disorder and criminality in Canada,’ International Journal of Law and Psychiatry 37, 1 (2014): 109-16. 71 50 of doctors into Melbourne, the decline in popularity for the death penalty and the increased reliance of the public in using insanity claims to spare offenders.73 It was against a culture of active, public communication, rippling through newspapers and rural communities, that the medical expert stepped onto the scene. These experts occupied an impossible position, inserting themselves within a medical culture that in the nineteenth century relied on objectivity, precision, visible results and empirical science.74 Yet doctors could not provide certainty, and members of the judiciary and the public alike scorned them for failing to present easy, certain answers in court. Where the early psychiatrists in France may have confidently and indiscriminately touted diagnoses such as ‘monomania’ in court, the first cohort of Australian psychiatrists did not, their testimony hedged with conditional phrases and uncertain terms. Perhaps colonial doctors did not feel qualified to speak in absolute terms, with their lack of proximity to those European wellsprings of cutting edge theories, their medical journals arriving at a three-year delay, and within a very small community, too much pride in discussing difference in opinion with colleagues. More likely it was the difficulty in molding a very uncertain science into the absolutes that the law demanded of them. The trial of Frederick Deeming saw a number of doctors testify, the defence asking one whether he had experience identifying insanity, to which the doctor replied, ‘I do not pretend to have expert knowledge of insanity’.75 When the same doctor refused to give any conclusive answer as to the defendant’s mental state, the defence retorted, ‘the public are ready enough to give it, but as a professional man you decline to do 73 Mark Finnane, Punishment in Australian Society (Melbourne: Oxford University Press, 1997), 129. See Roger Smith, ‘Criminal Insanity: From a Historical Point of View,’ The Bulletin of the American Academy of Psychiatry and the Law 11, 1 (1982): 30-31. 75 R v Deeming; ‘Evidence,’ Age, 2 May 1892, 6. 74 51 so?’76 Undoubtedly it was the specter of the death penalty that deterred doctors from supplying concrete answers, fearing theirs alone could send defendants to the noose. In this humble and wavering position, the voices of doctors were drowned out. They were forced to contend with the myriad groups—police, journalists, jurors, judges—who felt just as confident in identifying madness, perhaps even more so. Conclusion The system of capital punishment allowed for various parties to submit claims of insanity during and post-trial. Through police reports, judge’s notes, jury verdicts and recommendations to mercy, criminal trial procedure allowed for statements of manifest madness to accompany the documentation of trials that would be included in the case file forwarded to the Executive Council, who in their decision making, added yet another layer of non-medical deliberation to the trial. These judgments included an array of middle-class and working-class opinions. A relatively liberal and vocal culture surrounding capital crimes in the colony saw working-class men and women forwarding letters to the Executive, raising funds for prisoners and lending signatures to mass petitions, often using temporary insanity as the point on which a prisoner’s diminished culpability turned. The numerous insanity claims put forward in capital trials crossed class boundaries and emanated from various political and apolitical standpoints, sometimes aligning with medical positions but, more often, standing in opposition to expert opinion. Criminal trials were just one aspect of a varied and busy working life for the doctors who specialised in mental disorders, much of their time devoted to work in 76 ‘Evidence,’ Age, 2 May 1892, 6. 52 colonial asylums or private practice. Lack of time, resources and a dissonance between medical and legal definitions of insanity account for why Australian doctors did not seek to ‘colonise’ the courtroom as French and English doctors were purported to have done earlier in the century. Rather, these men offered their opinions cautiously, ostensibly propelled by intellectual interest and a sense of civic duty. The doctors were not welcomed into the courtroom. A vocal, democratically inclined, highly literate public associated psychiatry with the unchecked powers of the lunatic asylum and remained contemptuous of the middle-class men who professed to be doctors while failing to present conclusive diagnoses. Judges equally grew impatient with medical testimony that complicated rules of law. When they stepped into the Supreme Court chambers to testify at trials such as that of Rosanna Plummer in 1884, Victoria’s early psychiatrists were aware of the intense speculation that would continue to follow them each time they took the stand. 53 Chapter Two Insanity and the Infanticidal Woman On a bitterly cold day in June 1884, a caretaker named Ruth Thompson was on her shift at Spencer Street railway station when she noticed a young woman in well-worn clothing who entered the second class waiting room carrying an infant and a large carpet bag in her arms. Half an hour later, Thompson spotted the same woman emerging from the water closet without the child. She approached the young woman and inquired about the baby, to which the woman replied that a friend of hers had taken it. ‘That’s strange,’ Ruth said, her suspicions rising. ‘Will she bring your baby back in time for the train?’ The young woman shrugged, her voice friendly. ‘I am not at all afraid of that, she is an old friend of mine.’ The woman then said she was going out onto the platform for fresh air and left the room. She gave no hint of the silent, panicked struggle that had taken place not long before in the privacy of the closet, where Rosanna Plummer had held down and smothered her child, wrapped the small body in a red shawl and tucked her into the carpet bag she now carried onto the platform. Shortly before four o’clock that afternoon, her infant’s corpse would roll out from her bag and ensure her arrest for murder. The gendered politics of respectability that run through infanticide trial narratives are well covered historically, yet less attention has been paid to the factor of ‘insanity’ that essentially enabled these narratives. Infanticide historians have called attention to the way in which women who killed infants in England were considered an exceptional group of ‘less responsible juridical subjects’.1 Australian historiography, while often referring to insanity as one factor among many at trial, has largely elided close analysis of assertions of madness in these cases. 2 This is surprising given that claims of diminished mental capacity surfaced in every convicted infanticide case held in the Public Record Office Capital Case files between 1880 and 1914. The frequency with which defendants were believed to be insane reveals what Ann Jones and Jill Ainsley have identified as a societal discomfort with the ‘capacity for anger, violence and power’ posed by the female defendant.3 By asserting that a defendant was insane, colonists could more easily negotiate the contradictions female criminality posed to Margaret Arnot, ‘Perceptions of Parental Child Homicide in English Popular Visual Culture, 18001850,’ Law, Crime and History 7, 1 (2017): 39-40. See also Hilary Marland, ‘Languages and Landscapes of Emotion: Motherhood and Puerperal Insanity in the Nineteenth Century,’ in Medicine, Emotion and Disease, 1700-1950, ed. Fay Bound Aberti (London: Palgrave Macmillan, 2006), 53-78; Hilary Marland, Dangerous Motherhood: Insanity and childbirth in Victorian Britain (London: Springer, 2004); Marland, ‘Getting away with murder? Puerperal insanity, infanticide and the defence plea,’ in Infanticide: Historical Perspectives on Child Murder and Concealment, 1550-2000, ed. Mark Jackson (Vermont: Ashgate Publishing, 2002), 168-192; Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981), esp. Ch. 7; Tony Ward, ‘The Sad Subject of Infanticide: Law, Medicine and Child Murder 1860-1938,’ Social and Legal Studies 8, 2 (1999): 163-80; George Behlmer, ‘Deadly Motherhood: Infanticide and Medical Opinion in MidVictorian England,’ Journal of the History of Medicine and Allied Sciences 34, 4 (1979): 403-427; Cath Quinn, ‘Images and Impulses: representations of puerperal insanity and infanticide in late Victorian England,’ in Infanticide: Historical Perspectives on Child Murder and Concealment, 15502000, ed. Mark Jackson (London: Ashgate, 2002): 193-215; Daniel Grey, “Agonised Weeping’: Representing Femininity, Emotion and Infanticide in Edwardian Newspapers,’ Media History 21, 4 (2015): 468-480; Martin Wiener, Reconstructing the criminal: Culture law and policy in England, 1830-1914 (Cambridge: Cambridge University Press, 1990), 268-9; Joel Eigen, Unconscious Crime: Mental Absence and Criminal Responsibility in Victorian London (Baltimore: John Hopkins University Press, 2003): 71-83; Joel Eigen Witnessing Insanity: Madness and Mad-Doctors in the English Court (New Haven: Yale University Press, 1995); Alison Pedly, “A painful case of a woman in a temporary fit of insanity’: a study of women admitted to Broadmoor Criminal Lunatic Asylum between 1863 and 1884 for the murder of their children,’ (MA thesis, University of Roehampton, 2012); Alesha Lister, ‘Masculinity and Fatherhood in Representations of Male-Perpetrated Child Homicide in London, 18891913,’ (PhD thesis, Monash University, 2016.) 2 Barbara Burton, “Bad' Mothers? Infant Killing in Victoria, 1885-1914,’ (Honours thesis, University of Melbourne, 1986), 40-48; Kathy Laster, ‘Infanticide: A Litmus Test for Feminist Criminological Theory,’ Australia and New Zealand Journal of Criminology 22 (Sep 1989): 157-158; Kathy Laster, ‘Arbitrary Chivalry: Women and Capital Punishment in Victoria, Australia 1842-1967,’ Women & Criminal Justice, 6,1 (1994): 81-83; Jan Gammon, “Melbourne’s Magdalenes’: Crimes of Reproduction, 1895-1902,’ (Honours Thesis, Monash University, 1991), 24. 3 Jill Newton Ainsley, “Some Mysterious Agency’: Women, Violent Crime and the Insanity Acquittal in the Victorian Courtroom,’ Canadian Journal of History 35, 1 (2000): 40. 1 55 ideals of femininity, respectability and motherhood. In addition, nineteenth-century conceptions of insanity were in themselves highly contingent on gendered norms. This chapter conducts a microanalysis of Rosanna Plummer’s case as a means to dissect the myriad ideas regarding child-killing, maternal insanity and late-nineteenth century expectations of femininity in Victoria.4 While Plummer’s case presented a similar story to the many young defendants who had been ‘seduced and abandoned’ to bear an illegitimate child alone, her case also constituted the high point of activism for infanticide defendants in the colony. Plummer’s trial coincided with the burgeoning suffragist movement in Victoria that drew increased attention to the plight of workingclass women, particularly those deserted by husbands or suitors and without means to care for their children. In addition, the late-nineteenth century saw a proliferation of theories regarding the relationship between childbirth and mental illness in female bodies, theories that were not only introduced in court by medical professionals but adopted by ordinary people to explain the acts of sympathetic defendants. Plummer’s case was one of the first infanticide cases in the colony to see substantial, widespread post-trial activism on the basis of her insanity, and due to the extreme result of her case, the last to see such public efforts to interfere with sentencing outcomes. Through the tumultuous campaign for Plummer’s exoneration, this chapter will demonstrate how narratives of temporary insanity were not only a prominent feature in infanticide trials as other studies have shown, but the key driver in reframing guilt and responsibility post-trial, and crucial to sentencing outcomes of defendants subsequent to Plummer’s case. 4 Of the period 1880-1939 two men, Charles Glandfield and Henry Harvey, were convicted with infanticide of Glandfield’s son in 1903. However overall, the crime was predominantly committed by women and socially conceptualised as a uniquely female crime. See PROV VPRS 1100 P0002/3; VPRS 264 P0001/4; VPRS 1100 P0002/3. 56 Contextualising Infanticide In this period, infanticide was the most common charge for a woman arrested for murder.5 The typical infanticide defendant in the colonial imagination was a young domestic servant who birthed an illegitimate child in secret and then resorted to infanticide (the killing of an infant within one year of birth) due to financial and social circumstances. 6 A recent study of filicide in Victoria between 1860 and 1920 confirms that this was in fact the case, with 70 percent of filicides constituting infanticides and 68 percent of infanticides committed on ‘unwanted children’.7 The average age of infanticide offenders was 23, with the majority of perpetrators employed in domestic service.8 This demographic was certainly predominant where capital convictions were concerned. Of the ten women convicted for murder of an infant between 1880 and 1935, eight were aged between 17 and 24 and were employed in some form of domestic work when they gave birth to illegitimate children.9 However, in focussing on the stories of these perpetrators, one must not forget that they constituted only one portion of the broad range of filicides committed in Victoria at the time, with older married women Burton, ‘Bad Mothers?’ 40. See Laster, ‘Infanticide’; Grey “Agonised Weeping”; Arnot, ‘Perceptions of Parental Child Homicide’; Rychner ‘Murderess or Madwoman? Margaret Heffernan, infanticide and insanity in colonial Victoria,’ Lilith 23 (2017): 91-104. On domestic servants and illegitimacy specifically, see Shurlee Swain, ‘Maids and Mothers: Domestic Servants and illegitimacy in nineteenth-century Australia,’ History of the Family 10, 4 (2005): 461-471; M. MacNally, ‘Domestic Servants and Infanticide in Victoria, 1910-1914,’ (Honours thesis, La Trobe University, 1982). 7 Victoria Nagy and Georgina Rychner, ‘Longitudinal Analysis of Australian Filicide Perpetration Trends: Filicide in Victoria, 1860-1902’ International Journal for Crime, Justice and Social Democracy 9, 4 (2021) https://doi.org/10.5204/ijcjsd.1642. 8 Nagy and Rychner, ‘Longitudinal analysis’. On this stereotype in Australia and England, see Behlmer, ‘Deadly Motherhood,’ 416; Ann Higginbotham, “Sin of the Age’: Infanticide and Illegitimacy in Victorian London,’ Victorian Studies 32, 3 (1989): 319-337. 9 Thirteen women convicted for the murder of children in the period. Nine committed infanticide (the killing of an infant under the age of one): Rosanna Plummer (1884), Sarah Williams (1885), Mary Kempton (1888), Bella Ferguson (1889), Mary Fitzgerald (1892), Margaret Heffernan (1900), Agnes Ferry (1913), Emma Lonsdale (1915) and Mary Stevens (1935). Three committed filicide: Martha Needle (1894), Emma Williams (1895) and Camellia McCluskey (1910). One killed children who were not her own, Francis Knorr (1893). 5 6 57 predominantly securing acquittal or not guilty by reason of insanity (NGRI) verdicts.10 Barbara Burton correctly identifies the young defendants who received convictions as ‘not typical’, but the ‘public face’ of infanticide.11 Anxieties about infanticide peaked in England during the 1860s; Victoria witnessed its own infanticide panic in the last decades of the century, with thirteen women convicted for murder of children in the period.12 In England the panic around child killing arose through heightened visibility of children and any wrongs done to them via more consistent registration of births and deaths, the emergence of more vigilant medical coroners and an expanding press that fed off salacious stories of infant murder.13 The same changes occurred in Victoria several decades later. Between 1870 and 1890, Melbourne’s thriving metropolis began to reveal an uncomfortable concentration of poverty and a gradual rise in the infant mortality rate, with small corpses appearing in drains, ponds, trains, and from the murky depths of the Yarra River.14 Between 1885 and 1914, 614 infants were found dead, the majority discovered in the city of Melbourne, and police records show an average of 24 women charged annually with infanticide.15 However, due to the way that infant death could be concealed or attributed to natural causes, identifiable rates of infanticide likely constituted only a fraction of actual incidences.16 Nagy and Rychner, ‘Longitudinal Analysis.’ Barbara Burton, ‘Bad Mothers?’ 22. 12 Behlmer, 'Deadly Motherhood,’ 407-14. 13 Behlmer, ‘Deadly Motherhood,’ 407-14. 14 ‘Mortality of Male and Female Infants, 1871-1890,’ Australian Year Book 1890-1, p. 334-336. Graeme Davison, The Rise and Fall of Marvellous Melbourne (Melbourne, Melbourne University Press, 1978), 225; Shurlee Swain, ‘Birth and death in a new land: Attitudes to infant death in colonial Australia,’ History of the Family 15, 1 (2010): 27. 15 Burton, ‘Bad Mothers,’ Appendix 1, 49, 50; Shurlee Swain, ‘The Concealment of Birth in Nineteenth-Century Victoria,’ Lilith 5 (1988): 141; Gammon, ‘Melbourne’s Magdalenes,’ 16; Laster, ‘Infanticide,’ 153. 16 Judith Allen, Sex and Secrets: Crimes Involving Australian Women since 1880 (Oxford: Oxford University Press, 1990), 17. 10 11 58 Authorities expressed frustration at the difficulty in locating, apprehending and prosecuting mothers. The Victorian Vigilance Association, a society devoted to protection of young girls and infants, claimed to bear witness in 1892 to numerous cases of infant murder ‘day to day’.17 A Victorian M.P. claimed in that same year that three cases of infanticide were reported to the police each week. 18 Detectives were tasked with tracing mothers who abandoned infants or corpses, sometimes to no avail. ‘You cannot find them out’, wrote Melbourne’s coroner, Dr Richard Youl, ‘and you cannot convict them if you do get a case.’19 Where mothers were traced and charged, it was incredibly difficult for inquest juries to distinguish the faint lines between death from exposure, stillbirth and wilful murder. Insubstantial evidence often saw juries opt for a lesser conviction of abandonment or concealment of birth, the sentence for these minor offences ranging from a fine of 40 shillings to 18 months imprisonment.20 While the press published the number of convicted criminals each year, the ‘dark figure’ of infant murder haunted colonists and lawmakers from the 1880s onwards. 21 The last decades of the century placed heightened importance on infant wellbeing as a means to ensure the colony’s future generations. Intimately tied to this idea were anxieties regarding Victoria’s place in the imagined Western world as a ‘civilised’ colony, where infant life was protected rather than squandered. Through use of statistics the Victorian government and the press kept a close eye on birth rates and crime incidences, comparing Victoria to her sister colonies, as well as other European nations. The Argus and the Leader positioned the colony as being relatively lawful 17 Age, 4 Jul 1893, 5; Argus, 9 Sep 1892, 5. Argus, 15 Oct 1892, 12. 19 Victorian Parliamentary Papers, 1892-3, no. 60, volume IV, 311 cited in Burton, ‘Bad Mothers,’ 23. 20 Shurlee Swain, ‘Concealment of Birth,’ 141-3. 21 The ‘dark figure’ is a popular metaphor used by historians and criminologists to refer to the unknown number of infanticides. See Laster, ‘Infanticide,’ 154. 18 59 when compared to countries such as Germany, where a ‘deplorable moral situation’ saw two infanticides in the space of a fortnight in Berlin in 1883 or, worse, France, where a reported 170 cases of infanticide took place in the year 1884.22 The view that the crime was particularly abhorrent, and reflected poorly on Western nations, sprung from sensationalist reporting of the crime elsewhere, such as in China and India. ‘One of the most revolting traits on the Chinese character’, wrote one Australian journalist in 1865, ‘is the murder of infants so common in the Celestial Empire.’23 Newspapers fretted over possible implications for the Australian colonial character as the crime became more apparent in Melbourne. ‘Travellers who visit Canton, Nankin or Foochow dwell with fine scorn upon the practice [of infanticide]’ wrote an Argus journalist in 1884, yet if a Mongolian visitor were to walk through the streets of Melbourne, ‘his eyes would dilate with horror at the way in which infants are disposed of with impunity.’24 The generalisations that attended the reporting of the crime, gesturing to multitudes of corpses littering the streets of Melbourne were far removed from the approximately thirty to forty infant bodies that came before the coroner each year. 25 This style of reporting aimed to shock readers, and in some cases, to prompt government reform in deterring the crime. In an effort to curb the crime and identify perpetrators more effectively, the Victorian Government passed the Infant Life Protection Act in 1890. The legislation made provisions for the compulsory registration of births and deaths of illegitimate children. The Act also made it an offence to neglect any child under the age of fourteen 22 For context, there were only two infanticides prosecuted in Victoria in 1884: Annie Bell, who was convicted on a lesser charge of manslaughter and served six months imprisonment, and Rosanna Plummer. Argus, 19 June 1886, 13; Leader, 20 Oct 1886, 36. 23 ‘Infanticide,’ Argus, 4 Nov 1865, 691. 24 This despite all women convicted of infanticide in the period being Caucasian. Argus, 12 Aug 1884, 4. See also Argus, 18 Sep 1886, 8. 25 Burton, ‘Bad Mothers,’ 311. 60 and granted power to the police to search any premises where a suspected child neglect offence or infanticide offence had occurred.26 Though in practice the provisions were ill-enforced and ineffective, the press praised the Act as a successful deterrent and optimistically commented on an increase of inquests into infant deaths.27 Shurlee Swain identifies a pronatalist effect in this legislation, where ‘the problematic illegitimate child transformed into the potential citizen.’28 This shift culminated in the federal 1912 Maternity Allowance Bill that awarded five pounds to every white woman, married or unmarried, who gave birth to a living child.29 The crime of infanticide fostered anxieties regarding the character, health and reproductive survival of the Australian colonies. Public commentary often centred on the woman who committed this crime: who she was, and whether she was perpetrator, victim, or both. Rosanna Plummer as the Infanticidal Woman Through her actions, the infanticidal woman challenged nineteenth-century ideals of femininity and motherhood. The anonymous infanticidal mother drew criticism from the public, with newspapers such as the Age and the Argus reminding readers what a ‘fiend of cruelty’ women could be.30 The press construed infanticide as a chilling, deliberate crime, warning colonists of ‘a very army of murderesses in our midst.’31 However, when a defendant was tried in the Supreme Court and the various details surrounding her past or her circumstances surfaced, colonists could no longer condemn Infant Life Protection Act 1890 (Vic). Laster, ‘Infanticide,’ 163. This despite the fact that the Infant Life Protection Act added little to the provisions already contained in the Health Act (1883). In practice, the 1890 Act did not come into effect until 1893 and once it did, mandatory registration of births and deaths and the inspection of premises were seldom fully enforced. Burton, ‘Bad Mothers,’ 15; Laster, ‘Infanticide,’ 163-4; Swain, Single Mothers, 111-12. 28 Swain, Single Mothers, 111. 29 Swain, Single Mothers, 111. 30 Age, 7 Oct 1895, 4; Argus, 21 Dec 1870, 5. 31 Age, 7 Oct 1895, 4. 26 27 61 her in the abstract. The women who reached the Supreme Court were certainly in the minority and constitute only the ‘public face’ of infanticide, yet it is through their trials that we can observe how colonists assessed infanticidal mothers who had been found guilty, and all the contradictions they embodied.32 Rosanna Plummer was the daughter of John and Kate Plummer, respectable farmers who lived at Mokoan, fourteen miles from Glenrowan in the north east of the state. In 1884, the family, consisting of five children, had lived in the district for nine years and cultivated close relationships with neighbours. Rosanna was eighteen years old and contributed domestic labour to her family household, as well as taking in sewing for local families. Occasionally she assisted a neighbouring farmer outdoors for a day or two during harvest. Her neighbours thought her to be an industrious, goodnatured young woman. Michael Bergin lived on a neighbouring property, and the pair had known each other since they were twelve years old. Many in the area knew them to be sweethearts and thought they would marry. When Plummer realised that she was pregnant with Bergin’s child, she confided in her mother. The two women travelled by train to Melbourne, where Rosanna was confined at Dr John Singleton’s home for two weeks.33 She was then transferred to Mrs Ellen Singleton’s home— Dr Singleton’s spouse and a midwife operating in King Street— where she gave birth to a daughter whom she never named.34 Ellen Singleton and a matron named Frances Delaney later testified in court as to Plummer’s whereabouts on the day of the alleged murder.35 Plummer left King Street Burton, ‘Bad Mothers,’ 22. On the rates of offenders relative to convictions, see Swain, Single Mothers, 95-6, Burton, Appendix I, 50; Laster, ‘Infanticide,’ 153. 33 Trial transcript, R v Plummer (1884), VPRS 264/P/0001. 34 Historical index, Births Deaths and Marriages Victoria. 35 Testimony of Ellen Singleton and Frances Delaney, trial transcript, R v Plummer (1884), VPRS 264/P/0001. 32 62 with a carpet bag and her child wrapped in a red shawl. She made for Dr Singleton’s in Collingwood to collect her clothes; the arrangement was to meet her mother at Spencer Street Railway Station to catch the last train home to Benalla. Kate Plummer waited at the station but did not see her daughter there. Unknown to her, Rosanna was pacing up and down a different platform, burdened with heavy deliberations. With money that her mother had given her that morning, she took a cab back to Dr Singleton’s Home in Collingwood. She had forgotten the address and asked a woman on the street— an iron maker’s wife named Lucy Fenn— for directions.36 Once at Dr Singleton’s, Plummer asked Delaney whether she could stay another night and leave tomorrow instead. Delaney asked where the baby was; Rosanna replied she had given it to her mother, who had already taken the train home. There came a ring at the door. Lucy Fenn had decided to notify Delaney that she had seen a young woman on the street with what she suspected to be a dead child. The pair questioned Rosanna, who first said her mother had taken the baby, then denied she had a carpet bag, and then, on the matron finding the little corpse, saying ‘I know nothing about it. I took the child, it had a little band round its waist, excessively tight.’37 By the time a police constable entered the home near four o’clock, Plummer had confessed that she smothered the child at the train station. Her mother—by this time searching for her daughter—would find her in the city lock-up the next day, under arrest for murder. Plucked from the anonymity of the faceless infanticide offenders purported to roam the metropolis, Rosanna Plummer came under public scrutiny as an individual with a specific past and circumstances that led to the crime. Following the news of her arrest, the press formulated quick judgments and constructed the lens through which 36 37 Testimony of Lucy Fenn, trial transcript, R v Plummer (1884), VPRS 264/P/0001. Testimony of Frances Delaney, trial transcript, R v Plummer (1884), VPRS 264/P/0001. 63 the public should view Rosanna. The Age reported that she was the daughter of respectable farmers, and it was a young male neighbour who had caused her fall from grace. 38 Conversely, The Argus described the case as ‘a most heartless child murder.’39 The most notable press addition to the narrative was Plummer’s supposed insanity. Creative reporting told of how Rosanna considered destroying the infant ‘by placing it on the rails to be killed by some passing train’, but ‘alter[ed] her mind at the station’ and being beside herself in ‘a frenzy of passion’ opted for the water closet instead. She then ‘wandered about with a vague idea of committing suicide herself and thus escaping the true consequence of her crime’ but ultimately found herself back in Collingwood, ‘without knowing how or by what means she got there’.40 The press inserted insanity into the narrative before Plummer submitted an insanity defence at trial, and the reason for this lies in the close relationship between notions of late-Victorian femininity and the incapacity for violence. Femininity and Insanity Sympathy for infanticide defendants often lay in a range of cultural factors, the most overt factor being a visible ‘femininity’. The nineteenth century saw the introduction of a new approach to crime and punishment; where previously criminal law was concerned simply with offense and penalty, a new criminological paradigm shifted focus from the crime itself to ‘the crime, the criminal and the means of repression.’41 The criminal needed to be scrutinised, his or her history and motives understood, and a Only later would the press ascertain the identity of Michael Bergin. ‘Alleged Murder of an Infant,’ Age, 24 June 1884, 5. 39 ‘Heartless Infanticide,’ Argus, 24 June 1884, 7. 40 ‘Alleged Murder of an Infant,’ Age, 24 June 1884, 5. 41 See Michel Foucault, ‘About the concept of the 'dangerous individual' in nineteenth-century legal psychiatry,’ International Journal of Law and Psychiatry vol. 1 (1978): 2. 38 64 process of confession, self-examination and self-redemption undertaken in order to eliminate the danger that they as an individual posed to the social body.42 The colonial public, in the form of journalists, newspaper readers, jurors, and political agitators, assessed the degree of a criminal’s responsibility and the amount of punishment required. Their unofficial judgment was informed by social factors that constituted the understanding of what a ‘criminal’ was, how he or she looked and behaved.43 Gender is pertinent to the study of reproductive crime; Victorians constructed woman as the morally superior sex based on her purportedly gentle nature, ‘instinctive’ maternalism and promotion of pacifism in opposition to male violence. Judith Allen’s Sex and Secrets demonstrates how crime could be a lens through which to examine ‘the negotiations between the sexes with regard to sexuality and power’.44 Women carried out abortions, engaged in baby farming and infanticide largely due to the legislative and social restrictions placed on their freedom to regulate their own reproduction, and jurors, lawmakers and a vocal public then assessed their culpability in gendered terms. A mother who deliberately killed her own child challenged this notion and was quickly conceived of as unfeminine and ‘sexless’. A mother who presented as appropriately feminine in appearance and demeanour who nevertheless killed her own child disrupted this feminine/violent binary. In these cases, colonists were reluctant to believe the defendant responsible for her actions.45 Foucault, ‘About the concept,’ 2. For more on community attitudes and capital punishment, see Mark Finnane, Punishment in Australian Society (Melbourne: Oxford University Press, 1997); J. M. Bennett, ‘The Royal prerogative of mercy–putting in the boots,’ Australia Law Journal 81, 35 (2007): 35-47; Kay Saunders, Deadly Australian Women: Stories of the women who broke society’s greatest taboo (Sydney: Harper Collins, 2013); Elizabeth Nelson, Homefront Hostilities: The First World War and Domestic Violence (Melbourne: Australia Scholarly Publishing, 2014), 69-115. 44 Allen, Sex and Secrets, 12. 45 Argus, 12 Aug 1884, 4; Numurkah Leader, 7 Nov 1895, 3. 42 43 65 Colonists appraised the femininity of female defendants through the glimpses they caught of prisoners in densely crowded courtrooms, and more often, through descriptions in newspapers. Significance was placed on defendants’ clothing and conduct in court.46 Where male infanticide defendants were expected to self-censor emotions in order to demonstrate a masculine self-control, spectators searched female defendants for displays of emotional suffering that revealed grief and shame.47 Margaret Arnot notes the cultural weight of tears and the way in which they aided the case of English female offenders.48 The same criterion applied in colonial cases. The youth and appearance of Rosanna Plummer greatly affected the public. This was not a ‘callous’ woman of ‘ill repute,’ as the prisoner Emma Williams would be described in 1895, but a domestic servant, the daughter of respectable and well-liked farmers, who the press was quick to describe after the trial as ‘young and confiding’ and not a convicted criminal, but ‘a poor, deserted victim of man’s lust and unfaithfulness’.49 The press emphasis on demeanour had longevity in the period, as can be seen in cases such as the 1910 trial of Camellia McCluskey. Charged for the murder of her three children, McCluskey wore a ‘dark blue serge skirt, black sealskin jacket coat and large blue straw hat’ and the way in which she ‘frequently burst into tears and expressed her contrition for her evil acts.’50 Due to these cues, the Bendigo Advertiser wrote sympathetically about McCluskey’s trial, asserting that her claim of temporary insanity was ‘evident’ to the members of the public who jostled for space to watch the proceedings.51 See Daniel Grey, ‘Agonised Weeping’. Grey, ‘Agonised Weeping,’ 471-2. 48 Arnot, ‘Perceptions of Parental Child Homicide,’ 38. 49 Ballarat Star, 29 July 1884, 2; ‘Figaro,’ ‘In the Barber’s Shop,’ Telegraph, 2 Aug 1884, 5. 50 ‘Horrible Murder,’ Bendigo Advertiser, 8 Aug 1910, 7; ‘The Inquest,’ Bendigo Advertiser, 9 Aug 1910, 3. 51 ‘Horrible Murder,’ Bendigo Advertiser, 8 Aug 1910, 7. 46 47 66 In addition to appearance and demeanour, the history of an offender could also act as an indicator of redemptive femininity. Just as the press reported that Rosanna Plummer was the daughter of respectable farmers, newspapers reported that Sarah Williams, charged with throwing her infant from a bridge into the Yarra River in 1885, had been presented as ‘an industrious, respectable woman’ in police reports.52 One newspaper printed that ‘the previous conduct’ of Bella Ferguson, a young woman who drowned her infant in a water tank in Dandenong in 1889, ‘proved she had grown up to be a good, respectable girl under very adverse circumstances.’53 Though Plummer, Williams and Ferguson had erred in birthing illegitimate children and their crime had removed them from respectable society, a history of hard work and a life lived within the boundaries of appropriate familial and sexual relationships fostered public sympathy and allayed fears regarding the threat these women posed to society.54 The contradiction posed by a feminine offender with a respectable history was somewhat reconciled by a narrative of abandonment by a callous male seducer. Newspapers and individual supporters deplored the anonymous men who courted Rosanna Plummer, Bella Ferguson and Margaret Heffernan, only to leave them to bear the shame of an illegitimate child alone.55 In analysing the arbitrariness of the justice system in regard to virtuous and promiscuous offenders, Kathy Laster comments that ‘Alleged Murder of an Infant,’ Age, 24 Jun 1884, 5; Ovens and Murray Advertiser, 16 Jan 1886, 8. See also ‘A Case of Child-Murder,’ Weekly Times, 28 June 1884, 11. In addition, employers of Margaret Heffernan, tried in 1900, sent letters to the Executive attesting to her sober and industrious work habits. R v Heffernan (1900), PROV VPRS 264. See Rychner, ‘Murderess or Madwoman?’. 53 ‘The Case of Bella Ferguson,’ South Bourke and Mornington Journal, 26 Mar 1890, 3. 54 Swain, ‘Concealment of Birth,’ 147; Swain, Single Mothers, 98; Kathy Laster, ‘Arbitrary Chivalry,’ 89. 55 On Plummer, see ‘Heartless Infanticide,’ Argus, 24 June 1884, 7; ‘The Condemned Girl, Rosanna Plummer,’ Age 28 Jul 1884, 6; Argus, 12 Aug 1884, 4; ‘In the Barber’s Shop’ Telegraph, 30 Aug 1884, 5. On Ferguson, see ‘Melbourne News’ Mount Alexander Mail, 30 Nov 1889, 3; Geelong Advertiser, 30 Nov 1889, 2; ‘The Convict Bella Ferguson,’ Age, 23 Dec 1889, 5; South Bourke and Mornington Journal, 25 Dec 1889, 2; ‘News in Brief,’ Independent, 28 Dec 1889, 2. On Heffernan, see ‘Latest Intelligence,’ Ovens and Murray Advertiser, 24 Feb 1900, 4; ‘Our Melbourne Letter,’ Snowy River Mail, 3 Mar 1900, 3; ‘An Unfortunate Case,’ Yackandandah Times, 9 Mar 1900, 2; ‘Maggie Heffernan’s Sentence,’ Age, 14 Mar 1900, 9. 52 67 ‘politics, not law, determined their fate.’56 Foucault outlines the motions by which nineteenth-century offenders obtained public sympathy: through expression of character, public confession and a request for redemption.57 The infanticide defendant’s character lay in her past and her ostensible respectability, her confession in her emotive display in the courtroom and her redemption in the extent to which she appeared as an acceptable woman, one who could be restored to her socially ordained role as mother and caregiver in future. After all, women like Plummer, it was argued, would not have committed infanticide if their male seducers had not ‘driven’ them, through fear and abandonment, to kill. Infanticide and Puerperal Insanity Rosanna Plummer submitted a defence of insanity. On 16 July 1884, the Supreme Court trial commenced before Chief Justice William Stawell and a jury of twelve men. Three doctors testified: the prosecution called a Dr Stirling, who had conducted the postmortem and confirmed death by suffocation, and the defence called two doctors on the question of insanity. Dr Stephen Burke had attended Rosanna at Portland House during her confinement, and Dr Andrew Shields inspected the defendant in prison two days after her arrest. Both confirmed Plummer had been ill with bronchitis and a fever at time of birth. Neither of these doctors offered conclusive opinions regarding insanity. The defence counsel submitted that Plummer suffered from puerperal mania, a mental illness thought to attend women in pregnancy and after childbirth.58 Laster, ‘Arbitrary Chivalry,’ 70-71. I refer here to the elements of criminality discussed in Foucault, ‘About the concept,’ 2. 58 Trial transcript, R v Plummer (1884), VPRS 264/P/0001. 56 57 68 Dr Burke told the jury that puerperal mania generally occurred at the fifteenth day after birth, and the child might be unsafe if left with the mother during this time.59 Dr Shields confirmed that a woman suffering from puerperal mania one day might be quite well a day or two afterwards, establishing the disease as a most temporary one.60 However, due to the subjective nature of the M’Naghtan rules, neither could confirm nor deny that Plummer had been suffering from puerperal mania at the time of the crime. The jury was not persuaded beyond reasonable doubt, yet the Victorian public were convinced that this was a case puerperal insanity. The long historical relationship between ideas of childbirth and insanity has seen infanticide interpreted as both crime and symptom of mental disorder. This duality predated nineteenth-century medicine; the jurist George Hale in his Pleas of the Crown (1736) wrote of infanticide as the result of a temporary fit or ‘phrenzy’ that mothers had no recollection of once recovered.61 Nineteenth-century doctors identified insanity that attended labour or childbirth as puerperal insanity, an illness that became commonly accepted as a risk to new mothers as the century progressed. 62 In England and Australia, the aetiology of the illness varied between medical tracts with a range of factors attributed to inducing puerperal mania, some of which were contradictory. Women could be afflicted due to the mental strain wrought by the physical changes of pregnancy, heredity or ‘moral’ factors, such as excess, poverty, overwork, underwork, the stresses of marriage, or an illegitimate birth.63 59 Testimony of Dr Burke, R v Plummer (1884), VPRS 264/P/0001. Testimony of Dr Shields, R v Plummer (1884), VPRS 264/P/0001. 61 Matthew Hale, Historia Placitorum Coronae: History of the Pleas of the Crown vol 1 (London: 1736), 34-36. 62 The disorder could also be known as puerperal insanity or puerperal psychosis. Marland, Dangerous Motherhood, 2; Marland, ‘Getting Away With Murder?’ 191. 63 Marland, Dangerous Motherhood, 139; Nancy Theriot, ‘Diagnosing Unnatural Motherhood: Nineteenth-century Physicians and ‘Puerperal Insanity,’ American Studies 30, 2 (1989): 76-77. 60 69 Since the 1980s feminist historians have identified puerperal mania, and the vague and wide-ranging symptoms that attended it, as a medical explanation for behaviour that did not correspond with social expectations of motherhood. Symptoms could include a disinterest in the child, a disregard for household duties, ‘low spirits’ or outbursts of anger and violence.64 Asylum case notes tracked progress in measures of femininity; a doctor considered a female inmate who ‘did her hair up fantastically’ much improved once the hair was dressed in an ‘ordinary way, the general aspect much more sane.’65 That women were diagnosed with puerperal mania several years after giving birth suggests that doctors used the disorder as a broad label for female distress.66 Lay judgments of insanity in female defendants also operated to displace responsibility and recast the female perpetrator into the more comfortable role of helpless victim. Kathy Laster notes that in these trials, ‘contemporaries sought to explain or at least mitigate the deviance of [infanticidal] women in terms of mental instability.’67 Jurors or the press alleged that Rosanna Plummer (1884), Sarah Williams (1885), Bella Ferguson (1889), Selina Blackmore (1899) and Margaret Heffernan (1900) suffered from puerperal mania. The husband of Sarah Williams (1885) was said to have driven her insane through abuse and neglect, the husband of Frances Knorr (1894) alleged that she suffered from epileptic fits. 68 These narratives did more than 64 Stephen Garton, Medicine and madness: A social history of insanity in New South Wales, 1880-1940 (Sydney: UNSW Press, 1988), 143-154; Maree Dawson, ‘National Fitness or Failure? Heredity, Vice and Racial Decline in New Zealand Psychiatry: A Case Study of the Auckland Mental Hospital, 186899,’ (PhD dissertation, University of Waikato, 2013), 197; Alison Watts, ‘Maternal Insanity in Victoria, Australia: 1920-1973,’ (PhD dissertation, Southern Cross University, 2015), 10-11. 65 Catharine Coleborne, “She does up her hair fantastically”: The production of femininity in patient case-books of the lunatic asylum in 1860s Victoria,’ in Forging Identities: Bodies, Gender and Feminist History, ed. J. Long, & H. Brash (Perth: University of Western Australia Press, 1997), 47-68. 66 Alison Watts, ‘Maternal Insanity,’ 11. See also Catharine Coleborne, Reading Madness: Gender and difference in the colonial asylum in Victoria, Australia, 1848-1888 (Perth: API network, 2007), 53. 67 Laster, ‘Infanticide,’ 157. 68 R v Plummer (1884), VPRS 264/P/0001; R v Ferguson (1889), VPRS 1100; R v Williams (1885), VPRS 264; ‘A Mother Hurls Her Infant Over the Falls Bridge,’ Mount Alexander Mail, 3 Dec 1885, 3; Ovens and Murray Advertiser, 3 Dec 1885, 2; R v Blackmore (1899), VPRS 264; R v Heffernan (1900), VPRS 264; R v Knorr (1894), VPRS 264; Saunders, Deadly Australian Women, 141-142. Shurlee 70 explain infanticide in accessible terms. The politics of which defendants were cast as insane, and who received lighter sentences, operated to reinforce middle-class standards of respectability and maternal duty. Judges were aware of the potential of insanity narratives in attaining lighter sentences. As a result of the weak medical testimony presented at trial, Rosanna Plummer’s insanity defence failed. The jury recommended her to mercy, not on the basis of insanity, but ‘on the grounds of wrongs she received from the father of the child’.69 This was an unusual recommendation; jury recommendations to mercy referred to factors such as age, previous good conduct or provocation, not the wrongs inflicted by the other parent of the child victim. Chief Justice Stawell felt uneasy in regard to the jury’s phrasing. In his letter to the Executive Council, he reframed the jury’s words to incorporate the insanity narrative presented at trial: The paroxysm therefore which induced her—if perfectly sane—to destroy her offspring must have been sudden and unpremeditated… If I caught the intention of the Jury these were their grounds—though not distinctly expressed—which induced them to add to their verdict a strong recommendation to mercy. In that recommendation I most fully concur. 70 In this reframing Stawell attached greater legal weight to the jury’s words. For the Executive to act on recommendations pertaining to ‘wrongs received from the father of the child’ would be not only to acknowledge the political circumstances that led women to resort to infanticide and partially remove blame from a convicted offender, but in doing so, would reveal a dangerous level of arbitrariness in the sentencing process. Where did ‘wrongs received’ begin and end in the legal sense? A lighter sentence on the basis of insanity was more easily justified. Swain, Kay Saunders and Barbara Burton refer to the prevalence of insanity in their studies of infanticide trials. See Swain and Howe, Single Mothers, 96-98, Saunders, Deadly Australian Women, 152-155; Burton, ‘Bad Mothers?’ 16-48. 69 Trial transcript, R v Plummer (1884), VPRS 264/P/0001. 70 R v Plummer, Report of the Chief Justice, 30 July 1884. VPRS 264/P/0001. 71 The public fervour that occurred between Plummer’s conviction and her sentencing rallied around, and even built upon, the insanity narrative that was presented at trial. There were a number of reasons members of the public were roused to action on Plummer’s behalf. Her youth and appearance inspired action to prevent her execution. Some of the more astute, middle-class journalists or activists may have noted the utility of insanity narratives in securing commuted sentences for offenders. Others may have earnestly believed, through newspaper reports or through visiting the prisoner in Melbourne Gaol, that Plummer was insane. And then there was the sexual politics inherent to her crime. Working-class women recognised Plummer’s situation; middleclass women sympathised with it. What followed was a large-scale effort for reprieve that doubled as a statement on reproductive crime, a discussion ultimately framed by claims of madness. ‘The Crown of Martyrdom on her Head’ Plummer’s conviction roused the residents of Melbourne into action for the two-week period between trial and the decision of the Executive Council to commute sentence. ‘It is seldom that a criminal under sentence of death has so large a claim on public sympathy as the girl Rosanna Plummer,’ read the Ballarat Star a fortnight after the trial.71 Described as having blue eyes and ‘golden’ hair, the story of this young woman, ‘seduced’ by a deceitful neighbour and left to shoulder the burden of an illegitimate child alone captured the imaginations of men and women across the colony. Charitable middle-class women drafted a mass petition for Plummer’s mercy and took posts in Cole’s book arcade, the Ladies’ Club at 40 Collins Street, the Temperance Hall on 71 Ballarat Star, 29 July 1884, 2. 72 Russell Street and the entrance to Flinders street railway station. There they collected signatures from foot traffic, the front page of their petition stating Plummer deserved a commuted sentence, owing to the ‘insane behaviour’ she suffered on the day of the crime, ‘that could only be attributed to the effects of the puerperal fever from which she was then suffering’.72 It was not any particular aspect of Rosanna’s case that predetermined the infamy of her trial, but its fortuitous timing amidst the awakenings of the first women’s rights movement. On 8 May 1884, just two weeks before Plummer admitted herself to Dr Singleton’s Home, Henrietta Dugdale and Annie Lowe formed the Victorian Women’s Suffrage Society in South Yarra.73 This was the first society dedicated to women’s suffrage in the Australian colonies. While suffrage was the main objective, the society advocated for broader goals such as women’s marital property rights and admission to universities. This budding suffragist movement in Victoria highlighted the structural inequalities placed on women, not only through disenfranchisement and property rights, but the reproductive burden women carried as a result of divorce laws, lack of maintenance payments and a dearth of institutions in the city to aid single mothers.74 While Judith Allen notes on the relative silence of middle-class suffragists in cases of women convicted for reproductive crimes, their modest participation in Victoria reveals an attempt to help female prisoners in certain cases. In July 1884, Henriette Dugdale signed her name amidst the thousands of signatures pleading for Plummer’s commuted sentence.75 Taking a more active role, Mrs Eliza Ball, member 72 Petition for Rosanna Plummer, box 3, VPRS 264/P/0001. See ‘Intercolonial News,’ Sydney Morning Herald, 8 May 1884, 8; ‘A Woman’s Suffrage Society,’ Ovens and Murray Advertiser, 10 May 1884, 8. 74 See Age, 10 Sep 1884, 5. 75 For more on Dugdale see Susan Priestley, Henrietta Augusta Dugdale: Activist 1827-1918 (Melbourne: Melbourne Books, 2011); Suffrage Collective, They Are But Women: The Road to Female Suffrage in Victoria (Melbourne: University of Melbourne, 2007). 73 73 of the Victorian Women’s Suffrage Society along with her husband, would become one of the more prominent activists in Plummer’s cause.76 Susan Magarey argues that Australia’s first-wave feminists were not as conservative as other historians suggest; on the contrary, they were staunch advocates for sexual autonomy and the passionate, fulfilling desire that could culminate from an equal matrimonial partnership.77 Cases such as Plummer’s acted as cautionary tales of what could happen to women who fell pregnant with no means or support, telling of the social and financial burden that a woman often burdened alone. Suffragists quickly realised the potential these criminal cases had in highlighting the structural inequalities that governed colonial women’s lives. Subsequent high-profile cases, such as the trial of Margaret Heffernan for infanticide in 1900, saw the continued activism on the part of suffragists in this sphere.78 Historian Clare Wright identifies the volunteer effort that attended the Women’s Suffrage Petition in 1891 as ‘the first time women came together across class lines’, in which women conducted extensive door-knocking, talking over fences and trudging through poorer areas of Melbourne to collect signatures.79 Outside of the question of suffrage, the Women’s Suffrage Petition echoed a slightly older tradition of cross-class activism. Some of the women who signed their names in 1891 may have recalled the sizable petition for Rosanna Plummer’s mercy seven years prior. Rosanna’s cause was taken up by the colony’s women; the majority of petitioners and signatories were female.80 Petitioners signed their name and address, Eliza Ball (nee Gardener) is mentioned in newspapers as Mrs Isaac Warren Ball. ‘The Victorian Women’s Suffrage Society,’ Argus, 24 June 1884, 7. Historical index, Births Deaths and Marriages Victoria, accessed online 26 July 2020. 77 Susan Magarey, Passions of the First Wave Feminists (Sydney: UNSW Press, 2001). 78 On Vida Goldstein’s role in Margaret Heffernan’s trial, see Rychner, ‘Murderess or Madwoman?’ 92-103. 79 Clare Wright, You Daughters of Freedom: The Australians who won the vote and inspired the world (Melbourne: Text Publishing, 2018), 34. 80 Petitions, R v Plummer, VPRS 264/P/0001. 76 74 revealing a large concentration of signatories from Fitzroy, Collingwood, Richmond, South Yarra, Toorak, and Camberwell, as well as two large petitions from the outer districts of Hotham and Rosanna’s home in Benalla.81 Signatories in Hotham wrote ‘mother of seven’ or ‘mother of twelve’ after their names in solidarity with the young mother. Eliza Ball invited people to her residence in Prahran to sign a petition. By the time the petitions were presented to Governor Henry B. Loch they had accumulated some 16,000 signatures.82 On 16 September, Ball and a number of other women hosted a fundraising recital at the South Yarra Town Hall to raise money for ‘Rosanna Plummer’s Fund’, entry advertised in the Argus at one shilling.83 Victoria’s women recognised the difficulty of Plummer’s situation, and her case inspired arguments for greater protections for young mothers, including legal protection against male ‘seducers’. There were renewed calls for a maternity charity society, a foundling hospital and mandatory paternal maintenance payments. Journalists and letters-to-the-editor condemned the father of Rosanna’s child as ‘heartless’, ‘deceptive’ and ‘cowardly’.84 A journalist using the pen name of ‘Figaro’ wrote: I hold him to be equally responsible for the death of their child with its mother—nay, I consider him to be the more blameable of the two. If she is a murderess, what is he? Legally and socially the woman gets far the worst of it. It’s high time the shares were more evenly apportioned.85 The wealthy women of Prahran who had played a large role in organising the petitions, Mrs. Ball and Mrs. Wilcox, took up Figaro’s call and started raising money to take legal proceedings against ‘the betrayer.’86 In a letter to Mrs Ball that was subsequently 81 R v Plummer, VPRS 264/P/0001. Not the 65,000 signatures reported by the Ballarat Star, but a substantial number nonetheless. Estimates range between 16,000 and 17,000, and the size of the petitions held in the Public Record Office correspond to this figure. ‘Melbourne,’ Ballarat Star, 11 Aug 1884, 3; Bendigo Advertiser, 12 Aug 1884, 2; ‘Latest Intelligence,’ Colac Herald, 12 Aug 1884, 3. 83 Advertising, Argus, 16 Sep 1884, 1. 84 ‘The Plummer Infanticide Case,’ Ovens and Murray Advertiser, 5 Aug 1884, 1; ‘The Rosanna Plummer Case,’ Telegraph, 27 Sep 1884, 5; Telegraph, 2 Aug 1884, 5. 85 ‘Figaro,’ ‘In the Barber’s Shop,’ Telegraph, 2 Aug 1884, 5. Figaro is referred to elsewhere as a ‘contributor’ rather than a journalist and could have been male or female. 86 E. C. Ball, Letter to the Editor, ‘Rosanna Plummer’s Release,’ Telegraph, 30 Aug 1884, 5. 82 75 printed by Figaro, Rosanna’s mother made clear her anger at the young man: ‘we hear he is very frightened… we are going to bring him to justice.’ The public vitriol levied at Plummer’s ‘seducer’ helped to recast her as the desperate victim of circumstance. Laster writes that through the designation of reproductive crime as a capital offence, colonial society placed blame onto the female offender for failing to regulate her own reproduction rather than addressing the structural inequalities that had brought about this failure.87 This is true of where the law sought to place blame, but in regard to the popular pathologisation of distress, public narratives often located the behaviour of a male spouse or sexual partner as the driving force for madness. Just as Rosanna acted ‘in a moment of phrensy at her desertion by a scoundrel’, Sarah Williams’ mind was ‘unhinged at the time through her husband’s drunken neglect and abuse’.88 This reading of female murder was not necessarily restricted to infanticide; the defence for Camelia McCluskey, tried in 1910 for the murder of her three children successfully convinced jurors that her husband ‘simply treated her in a way, to use ordinary everyday language, to drive her out of her mind— to drive her crazy’.89 In these cases, the public presented insanity as a product of ill treatment at the hands of a spouse or a male stranger. Insanity was the way that everyday people displaced Plummer’s responsibility and ultimately championed her case. Middle-class journalists, politicians and activists attached as much importance to their own unprofessional judgements of Rosanna’s state of mind as they did to medical opinion. On 30 July, Footscray’s Independent read: Richard Douglas and Kathy Laster, ‘A Matter of Life and Death: The Victorian Executive and the Decision to Execute, 1842-1967,’ Australia and New Zealand Journal of Criminology 24, 2 (1991): 152. 88 R v Williams (1885), VPRS 264; ‘A Mother Hurls Her Infant Over the Falls Bridge,’ Mount Alexander Mail, 3; Ovens and Murray Advertiser, 3 Dec 1885, 2. 89 Mount Alexander Mail, 6 Aug 1884, 2; Ovens and Murray Advertiser, 3 Dec 1885, 2. 87 76 ‘Dr Singleton is of the opinion that the poor girl Rosanna Plummer […] is not of sound mind. We have thought so from the first.’90 Similarly, the Geelong Advertiser commented on the ‘strong and widespread feeling that the fearful deed was due to mental aberration… which opinion is held by medical men as well as laymen’.91 A week after trial, an M.P. raised Rosanna’s case in Parliament, asking the SolicitorGeneral ‘whether an investigation would be made… as to her sanity or otherwise’.92 The politician explained that he himself had visited Rosanna in prison, and though he found her to be perfectly sane on meeting her, he believed she had been insane at the time of the crime. Where medical estimations of madness assessed a set of symptoms before reaching a diagnosis, popular conceptions accepted Plummer’s distress as prima facie evidence of madness. Most telling is the phrasing Mrs. Ball used in a letter to the telegraph: ‘It was quite impossible for her to commit a crime in her right mind. Her open innocent face forbade the thought at once’.93 Abandoned by the father of the child, she was ‘left to face her shame and baffle with the world as best she might… her desperation and despair affected her intellect to such an extent as to render her scarcely accountable for her acts’.94 This ‘feeling of utter desperation and despair’ was believed to ‘oftentimes overtake youthful victims’, ‘unhinged their minds’ and ‘impelled’ to take the lives of their infants.95 Here, the eagerness of the public to ascribe insanity 90 Independent, 26 July 1884, 2. ‘Melbourne,’ Geelong Advertiser, 31 July 1884, 3. Also printed verbatim in Avoca Mail, 1 Aug 1884, 2. 92 ‘Parliament,’ Geelong Advertiser, 25 July 1884, 3; Colac Herald, 25 July 1884, 3; ‘Parliament,’ Argus, 25 July 1884, 7. 93 ‘Rosanna Plummer’s Release,’ Telegraph, 23 Aug 1884, 5. 94 Ballarat Star, 29 July 1884, 2. 95 Gippsland Times, 1 Aug 1884, 3; Independent, 9 Aug 1884, 2; Age, 12 Aug 1884, 4. 91 77 originated in their own conviction regarding her innocence rather than any medical opinion. At the height of this public activism, an extraordinary amount of evidence emerged. Thirteen men and women stepped forward announcing that they had seen Rosanna on the day she had murdered her infant, and signed statements for the Executive to that effect.96 These witnesses had not appeared at trial. There was the cab driver who had taken Rosanna from Portland House to Fitzroy, two men who had happened to share a cab with Rosanna from Fitzroy to Bourke Street, a police constable and a male bystander who had noticed her on the platform at Spencer Street Station, a husband and wife who had seen her close to their business in King street, two female lodgers at Portland house, a boarder at Dr Singleton’s home and a woman who had seen Rosanna walk past her house in Collingwood. The witness assessments of Rosanna’s insanity were vague, with no specific reference to words or actions. Many simply stated, ‘she had the appearance of not being in her right mind’ or ‘she seemed excited.’ Only George Wilkinson, a man who had allegedly seen Rosanna on the train platform elaborated that ‘she looked wild… I thought she had broken out of a lunatic asylum— her eyes were rolling and glazed.’97 These witnesses undoubtedly came forward as Melbourne buzzed with speculation over Rosanna’s insanity, the newspapers largely peddling a consensus that Rosanna had been mad. Their descriptions were not elaborate; there were no references to childbirth or puerperal mania. There was no public debate regarding symptoms, medical theories or the effects of pregnancy. Female madness was distress, excitement, the occasional ‘glazed eye’, all symptoms that were ostensibly clear and apparent to the everyday person. 96 97 Signed affidavits, R v Plummer (1884) VPRS 246 P0001/1. R v Plummer (1884), VPRS 264/P/0001. 78 Public, rather than medical, determinations of insanity influenced the decision of the Executive. The combined efforts of individual M.P.s such as Mr. Hall, the benevolent ladies of Prahran, the thousands of colonists who stopped at train stations to sign their names for Rosanna’s cause and the witnesses who stepped forward in the weeks after her trial and the advice of Chief Justice Stawell all played a part in informing the Executive Council’s decision.98 Towards the end of the fortnight, the Executive Council decided to ‘reserve their decision until further enquiries had been made with reference to the state of the prisoner’s mind’. On 12 August 1884, in the wake of several mass petitions and two weeks of feverish news coverage across Melbourne, the Council granted Rosanna a free pardon ‘on the ground of her insanity at the time of putting her child to death.’99 The decision to grant Plummer a free pardon, with no gaol time, good behaviour bond or fine, shocked the city of Melbourne. Initial elation expressed by bourgeois women in the press gave way to an atmosphere of disillusionment as colonists realised a woman who had killed her child was to escape punishment. In a lengthy editorial, the Age reflected on the ramifications of the sentence: We cannot free ourselves from the apprehension that the uncommon display of sympathy which her case has elicited from the public may tend to lower the morale of the community by creating the impression that no responsibility and very little guilt attaches to the victims of seduction who try to hide their disgrace by the means she adopted. The consequences would be disastrous for our national character.100 The Geelong Advertiser was more scathing of Rosanna’s multitude of supporters, deploring the way that they ‘took possession of the girl… determined not to part with her until she had revealed herself to them mentally and physically, to gratify their ‘Melbourne News,’ Mount Alexander Mail 12 Aug 1884, 3. ‘Rosanna Plummer’s Case,’ Leader, 9 Aug 1884, 28. 100 The editorial was one of the longest devoted to the case, coming to just over 1,600 words. Age, 12 Aug 1884, 4. 98 99 79 morbid curiosity.’101 The journalist went on to sarcastically suggest her figure be placed in the Waxworks. The fervent interest in maternal insanity began and peaked with Rosanna Plummer in a case where colonists, in their pursuit of justice, felt they had flown too close to the sun. No other female defendant would receive so many pages of press coverage or so many signatures on petitions.102 In an ironic twist of events, the public reconciled with the penalty-free outcome by placing blame on the failure of doctors to present sufficient medical evidence at trial. In the Victorian Parliament, a Mr. Mackay addressed his fellow members and asked them how a woman who was pardoned on the ground of insanity did not have evidence brought forward to that effect at her trial, characterising Plummer’s case ‘a standing outrage upon the administration of justice.’103 The press argued that the failure of doctors had left the public with no choice but to act: ‘it was left to popular clamour to determine that she should go forth free into the world again with the crown of martyrdom on her head.’104 Several MPs were quick to defend the Crown and the Chief Justice, asserting that the blame lay with the woman’s defence counsel, yet no one addressed the uncomfortable question of why the substantial evidence of Rosanna’s insanity only surfaced after her trial.105 Rosanna’s insanity was largely determined, not so much by the doctors who attended her during her confinement, but by thousands of citizens only once they saw a young, respectable woman sentenced to death in the 101 Geelong Advertiser, 19 Aug 1884, 2. Plummer is the only prisoner in the period to have three boxes devoted to petitions in the Victorian archives—most prisoners have one file. Geelong Advertiser, 19 Aug 1884, 2; R v Ferguson (1889), VPRS 1100; R v Heffernan (1900), VPRS 264 P0001/3. 103 ‘Parliament,’ Geelong Advertiser, 12 Sep 1884, 3; ‘Parliament of Victoria,’ Bendigo Advertiser, 12 Sep 1884, 3. 104 Geelong Advertiser, 19 Aug 1884, 2. 105 ‘Parliament,’ Geelong Advertiser, 12 Sep 1884, 3. 102 80 criminal dock and read of how she had been left to burden the shame of an unwanted child alone. Throughout the public circus of impassioned activism followed by cynical blame, Plummer herself kept quiet. While other defendants of the period played an active role in writing to the Governor, Plummer allowed the press to spin webs of stories around the image of her in what may have constituted a ‘conscious script[ing] herself within the norms of femininity; an assertion of agency within a very circumscribed existence.’106 Outside of signing her name to the mass petition that circulated in her defence, Plummer largely declined to speak to the various parties who visited her prison cell, and kept a distance from the efforts taking place beyond the prison walls.107 On her release, she politely declined to accept pecuniary assistance from the benevolent ladies eager to raise funds for her, and did not pursue action against the man who had allegedly seduced her.108 The only words Plummer communicated directly to the public after her trial were written in a tactful letter published in the Herald. In her letter she thanked the women who devoted time and energy into drawing up the large petitions for her cause, to the M.P. Mr Hall who raised her case in Parliament, and stated that she wished nothing more to be done in her favour as she had been happily restored to her parents. Rosanna signed off her final goodbye to the public with a reference to the mental state she, through the goodwill of charitable strangers and her return to the family home, had overcome: ‘God bless and reward all those who have exerted themselves toward me when everything looked dark and blank.’109 Rosanna Plummer Arnot, ‘Perceptions of Parental Child Homicide,’ 48. This petition was likely written by Plummer’s lawyer, Mr. Fisher. Argus, 28 Jul 1884, 5. 108 ‘Rosanna Plummer,’ Colac Herald, 15 Aug 1884, 3. See also ‘Melbourne,’ Geelong Advertiser, 13 Aug 1884, 4. 109 The Herald is not digitised on Trove, but this letter was published verbatim in the Ovens and Murray Advertiser, 16 Aug 1884, 4. 106 107 81 remains obscured by the myriad of discourses that sought to inscribe meaning onto her actions, but some of her own words do survive, and they belie all the grace, peacefulness and modesty that was expected of her. Beyond Plummer The young women convicted of infanticide after 1884—the year of Plummer’s case— did not receive such lenient sentences, despite each case in the period raising some form of insanity claim.110 While all death sentences were commuted save for one case of baby farming, the Executive Council opted for long prison sentences that communicated a firm stance against the crime, usually a minimum ten years with hard labour. This stance was seemingly for the sake of public appearance and deterrence. Defendants convicted in the 1880s, such as Mary Kempton and Bella Ferguson, were sentenced to ten years imprisonment with hard labour only to be released quietly after serving two years.111 Sometimes women were released early into the stipulated supervision of religious or benevolent women. While Melbourne societies and journalists continued to petition and write on behalf of infanticide defendants, the groundswell that originated in Plummer’s case subsided. There prevailed instead a cynicism regarding the role of ordinary people in the course of justice. A lengthy Argus letter to the editor dissected the ‘tendency to explain away crime as an act of temporary insanity’.112 Agitation to change the law or 110 R v Williams (1885) VPRS 264 P0000/11; R v Kempton (1888) VPRS 264 P0000/12; R v Ferguson (1889) VPRS 264 P0000/1; R v Fitzgerald (1892) VPRS 264 P0000/1; R v Knorr (1893) VPRS 264 P0000/22; R v Williams (1895) VPRS 264 P0001/2; R v Heffernan (1900) VPRS 264 P0001/3; R v Ferry (1913) VPRS 264 P0001/5; R v Lonsdale (1915) VPRS 264 P0001/6; R v Stevens (1935) VPRS 264 P0001/11. 111 R v Kempton (1888) VPRS 264 P0000/12; R v Ferguson (1889) VPRS 264 P0000/1. 112 Argus, 10 Apr 1890, 4. 82 remove infanticide as a capital offence would be understandable, the anonymous correspondent wrote, But it is a different thing to ask that the decision of court and law be set aside on merely sentimental grounds, at the request of people who in all probability have not followed the case closely. If this were to keep occurring, the editorial continued, ‘we might as well dispense with the jury and take the verdict of the class of petition signers’.113 The extreme outcome of Plummer’s case commanded greater prudence in public activism just as quickly as such activism had begun, and could easily be used to cast petitioners in a ridiculous light. The 1890s are well documented as a period of increased punishment regarding reproductive crime, seeing three women executed for crimes involving the murder of children.114 Kathy Laster notes that those executed—Francis Knorr (1894), Martha Needle (1894) and Emma Williams (1895)—received the full penalty of the law due to their failure to demonstrate the feminine respectability that young domestic servants such as Ferguson did.115 In doing so she challenges the pervasive ‘chivalry’ theory, the assertion that women received lenient sentences in the nineteenth century by virtue of their sex and a paternalism on the part of judges and jurors—in showing how this ‘chivalry’ was highly dependent on their observance of respectable conduct as women.116 Through disreputable past behaviour such as prostitution and petty theft, Knorr, Needle and Williams attracted the label of ‘monster woman’ in a period where protection of infant life became a state imperative. The lesser-known claims of insanity 113 Argus, 10 Apr 1890, 4. Douglas and Laster, ‘A Matter of Life and Death,’ 152; Laster, ‘Infanticide’; Saunders, Deadly Australian Women, 80; Swain and Howe, Single Mothers, 96. 115 Laster, ‘Arbitrary Chivalry,’ 88. 116 Laster, ‘Arbitrary Chivalry,’ 88. 114 83 that arose in the cases of Knorr, Needle and Williams undoubtedly failed to persuade the Executive and the broader public for the same reason. 117 While the importance of mothering, infant protection and population growth remained at the forefront of state concerns into the twentieth century, the punitive approach to infanticide defendants diminished as the crime became increasingly pathologised. Margaret Heffernan (1900) received four years imprisonment with hard labour and served only two.118 Agnes Ferry (1913) and Emma Lonsdale (1915) were both detained at the Governor’s Pleasure after conviction, a sentence usually reserved for offenders found not guilty by reason of insanity at trial.119 Ferry was released after two months; Lonsdale was released after four.120 The only woman to be convicted for the crime between 1915 and 1939 was Mary Stevens (1935), signalling a possible decrease in the incidence of the crime as well as a possible increase in acquittal or lesser offence convictions in trial outcomes. Mary Stevens’ case presented few differences compared with the women who had been convicted in the decades before. Stevens was a domestic servant living in Albury, NSW. Where Plummer had left a Home in Collingwood with her baby girl and a carpet bag, Stevens left a Home in Brunswick with a baby boy and a suitcase almost fifty years later, proceeding to drown him in the Yarra River.121 On arrest she confessed to police that she had killed the child because the man she was then engaged to had stated he would not keep another man’s child. At trial the defence put forward insanity, yet the failure to call any medical experts to the stand ensured a guilty verdict. Post- R v Knorr (1893) VPRS 264 P0000/22; R v Williams (1895) VPRS 264 P0001/2. Martha Needle’s case is explored in Chapter Four. 118 Register of Female Prisoners, VPRS 516, vol. 12, p. 291. 119 Register of Female Prisoners, VPRS 516, vol. 13, p. 295 and p. 369. 120 Register of Female Prisoners, VPRS 516, vol. 13, p. 295 and p. 369. 121 R v Stevens (1935) VPRS 264 P0001/11; VPRS 1100 P002/7. 117 84 trial Stevens’ case received petitions from the Parish of Albury, the Howard League for Penal Reform, the Country Women’s Association of New South Wales (Albury Branch) and the Women’s Auxiliary of the Australian Railways Union (Victorian Branch), all of which supported her statement that she was insane at the time of committing the crime.122 Stevens’ sentence was commuted to three years imprisonment with hard labour and she served two years. Legislative amendments would change the course of infanticide prosecution into the twentieth century. This change came from England, where the Infanticide Act 1922 provided a partial defence to murder where a woman deliberately killed her newborn child within three weeks of birth and where her mind was disturbed as a result of giving birth.123 If this defence was upheld the defendant received the same sentence as that of manslaughter. The English Infanticide Act 1938 then expanded upon the provisions of the act to include disturbance of mind ‘by reason of not having fully recovered from the act of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child’.124 Victoria followed suit a decade later with the Crimes Act 1949.125 This Act created a new offence of infanticide as distinct from murder, taking the definition of the English 1938 Act with the one exception of expanding the amount of time between birth and killing to twelve months.126 The sentence for this offence was equal to manslaughter.127 The 1946 legislation effectively defined infanticide as a crime that resulted from mental disturbance. Historian Lucia Zedner characterised this change in England as ‘a 122 R v Stevens (1935) VPRS 264 P0001/11, VPRS 1100 P002/7. Infanticide Act (1922) (UK). 124 Infanticide Act (1938) Second Reading, House of Lords Hansard, 22 March 1938. 125 Crimes Act (1949) Vic. 126 Crimes Act (1949) s 4(1). 127 Crimes Act (1949) s 4(1). 123 85 remarkable victory’ for the medical profession that ‘effectively replaced a traditional legal discourse with that of psychiatry’.128 Other scholars, such as Ania Wilczynski and Tony Ward submit an explanation that might be more fruitful for the Australian context.129 Ward suggests that medical categories continue to be ‘reconstructed’ or ‘stretched’ to arrive at results that conform to psychiatrists’, lawyers’ and laypersons’ shared understandings of what is reasonable.130 That is to say, rather than the law of infanticide existing as a purely legal or purely medical construction, the infanticide Acts redefined the crime in accordance with the myriad social, legal and medical views that had dominated trial proceedings since the late-nineteenth century. In mandating mental disturbance as an attendant factor to the commission of the crime, the Victorian 1946 legislation legitimised the recurring insanity defences that had been put forward since Plummer’s trial. A woman who committed infanticide was now legally assumed to be insane. Conclusion Mothers were convicted of infanticide in Victoria well before 1884 and continued to face the death penalty until 1946. Rosanna Plummer’s case is only exceptional in the sense that it occurred at a specific moment in the colony’s history. The 1880s saw increased deployment of European medical theories in cases of infanticide, these ideas also reaching a literate and self-confident populace. In addition, the decade saw heightened concerns regarding infant mortality and the status of the colony on the 128 Lucia Zedner, Women, Crime and Custody in Victorian England (London: Clarendon Press, 1991), 90. Ania Wilczynski, ‘Mad or Bad? Child Killers, Gender and the Courts,’ British Journal of Criminology 37, 3 (1997): 419-436; Tony Ward, ‘The Sad Subject of Infanticide: Law, Medicine and Child Murder, 1860-1938,’ Social and Legal Studies 8, 2 (1999): 163-180. 130 Ward, ‘The Sad Subject of Infanticide,’ 176. 129 86 Western European world stage. Bourgeois anxieties regarding motherhood, respectability and vice were projected onto the figure of the young infanticide defendant, and the high-profile nature of Plummer’s case presents the tension between these concerns and the sexual politics inherent to this form of reproductive crime. This chapter has shown how an invested public used insanity as a means to resolve that tension. In addition, Plummer’s case is a useful introduction to the dynamics of knowledge that operated between medical witnesses, jurors and public voices, from journalists, to society women, to members of Parliament. The rigid test of the M’Naghtan rules constrained medical testimony at trial, weakening the position of men such as Dr Burke and Dr Shields. A confident lay public identified puerperal insanity and then censured the medical profession for failing to do so in the first place. The Executive Council granted Plummer a free pardon on the grounds of her insanity as identified by laypersons rather than doctors. Of course, a politics of activism against the death penalty, and against the penalties paid by women rather than men, drove this diagnosis. Madness was the language through which such activism was legitimised. Plummer’s case demonstrates how insanity was not merely a factor that cropped up in certain infanticide cases, as past histories have characterised it. Insanity was central to the way society came to terms with guilt and responsibility in these cases, and crucial to their outcomes. The 1880s was the decade in which a vocal public realised the legal power that the claim of ‘temporary insanity’ held, ushering in an era of activism and contestation over which defendants were less responsible than others. While the extremism of Plummer’s case and the political climate of the 1890s somewhat quashed the spirit of activism in infanticide cases, insanity claims also proliferated in cases for male-perpetrated murder as Chapter Three will show. In 1946 87 Victoria’s Crimes Act incorporated mental disturbance into the very definition of infanticide where a woman was charged, reflecting an association that had endured in the state’s trials since the 1880s. Rosanna Plummer faded into obscurity and was gradually shed from a public memory that now focusses on the women who were far less fortunate than she.131 The last glimpse of Plummer appears in a newspaper article in 1890, a brief mention that she was then living as ‘a respectable married woman.’132 131 For example, the sizable and ever-growing literature on Martha Needle that is explored in Chapter Four. 132 ‘The Case of Bella Ferguson,’ South Bourke and Mornington Journal 26 Mar 1890, 3. 88 Chapter Three ‘His Mind Overwrought’: Male-perpetrated Murder and Insanity, 1880-1914 In July 1883, John Gray shot his estranged wife Elizabeth at his rural homestead in Western Victoria. Elizabeth had moved out of the family home to live with their eldest son William in 1882, communicating that she ‘was afraid of her life’ under the roof of her husband, who had ‘ill-treated her since she married him’.1 At his trial for murder, the defendant depended on the testimony of Dr John Madden, who presented a long and powerful speech outlining how Gray had acted under the delusion that his wife and his son had been in an incestuous relationship. This delusion, the defence argued, had plagued Gray’s mind and compelled him to kill his wife. Justice Stawell summed up strongly against the accused, applying the test originating from Hadfield’s Case (1800) to determine whether Gray qualified as legally insane. Where a defendant acted under the delusion that he was cutting a loaf of bread when in reality he was cutting a woman’s throat, his act would be excusable only if it were excusable were the delusion itself to be true (e.g. cutting a loaf of bread is legal). Justice Stawell reiterated to the jury that adultery, even if real and confirmed, did not justify the killing of a wife.2 In contrast to Stawell’s view, the letters and petitions Victorians sent to the Executive post-trial ‘The Branxholme Murder’, Age 23 Feb 1884, 10. ‘The Branxholme Murder’, Age 23 Feb 1884, 10; R v Gray (1884), VPRS 264, P0000/10, Public Record Office Victoria. 1 2 89 conveyed a popular belief that assumed or imagined infidelity could understandably affect a man’s sanity. Following the analysis of ‘temporary insanity’ as it was applied to infanticide female defendants in Chapter Two, this chapter posits that in the criminal courtroom, insanity also became a thoroughly gendered explanation for male crime in the latenineteenth century. While judgments of puerperal insanity were predicated on commonplace views of femininity and respectability, narratives of temporary insanity in trials for male offenders operated to uphold hegemonic masculinity and reinforce bourgeois values. Beyond opinions of guilt or innocence, insanity claims reveal how colonists judged men in a period of increasing societal intolerance toward male aggression and violence. Masculinity is a fluid category ‘defined collectively in culture’ and changing over time.3 While there is often a hegemonic ‘masculinity’ found within any given culture, ‘masculinities’ typically overlap or challenge one another.4 The early colonial years saw the emergence of class-stratified iterations of masculinity among landed gentry, merchants and labourers, as well as male convicts.5 An important factor in how colonists shaped these masculinities lay in what Miles Fairburn labels the ‘atomisation’ of colonial society; until the last decades of the century the colonies were dominated by young, single English-Irish migrants who lived with considerable freedom, R. W. Connell, ‘Introduction: Studying Australian Masculinities,’ Journal of Interdisciplinary Gender Studies 3, 2 (1998): 1-8. 4 See R. W. Connell, Masculinities (Sydney: Allen & Unwin, 1995); Clive Moore, ‘Guest Editorial: Australian masculinities,’ Journal of Australian Studies 22, 56 (1998): 1-16. 5 Clive Moore, ‘Colonial Manhood and Masculinities,’ Journal of Australian Studies 22, 56 (1998): 36; Raymond Evans and Bill Thorpe, ‘Commanding men: Masculinities and the convict system,’ Journal of Australian Studies 22, 56 (1998): 17-34. 3 90 untethered from extended family or responsibilities back home.6 In the latter decades of the century, Victoria’s gentry and merchant classes followed England’s own upper and middle classes in expressing a waning tolerance for male violence. Among this demographic there was a turn to Evangelical values of humility, religiosity and intellectualism in men.7 The artistic pursuits and intense introspection of some of Melbourne’s doctors such as John William Springthorpe reflect this shift.8 Football, cricket and other sports were heavily promoted as a healthy outlet for young boys in Melbourne’s elite schools.9 Promoting companionship and affection in marriage, ‘conjugal masculinity’ gained popularity in marital advice columns. By extension, this vision of manliness widened the expectations of fatherhood beyond crude financial provisions to include emotional presence in the family home.10 There was reactionary opposition to this family-oriented masculinity, seen by some fringe and working-class groups to represent the ‘feminisation’ of society. For instance, the concept of ‘muscular Christianity’, the popular reimagination of Christ as a ‘manly figure’, saw the formation of church ‘boy brigades’ (a pre-cursor to boy 6 Miles Fairburn, The Ideal Society and Its Enemies: The Foundation of Modern New Zealand Society, 1850-1900 (Auckland: Auckland University Press, 1989), 11-12; Moore, ‘Colonial Manhood,’ 36. 7 Martin Crotty, Making the Australian Male: Middle-Class Masculinity 1870-1920 (Melbourne: Melbourne University Press, 2001), 11, 73. 8 Stephen Garton, ‘The Scales of Suffering: Love, Death and Victorian Masculinity,’ Social History 27, 1 (2002): 40-58. 9 Crotty, Making the Australian Male: Middle-Class Masculinity 1870-1920 (Melbourne: Melbourne University Press, 2001), 86; Richard Waterhouse, 'Bare-Knuckle Prize Fighting, Masculinity and Nineteenth Century Australian Culture,' Journal of Australian Studies 26, 73 (2002): 101-110; Daryl Adair, John Nauright and Murray Phillips, ‘Playing fields through to battle fields: The development of Australian sporting manhood in its imperial context, c. 1850-1918,’ Journal of Australian Studies 22, 56 (1998): 51-67. 10 Ashley Hogan, “I never noticed she was dirty”: Fatherhood and the death of Charlotte Duffy in LateNineteenth-Century Victoria,’ Journal of Family History 24, 3 (1999): 305-316. On ‘conjugal masculinity’ see Margaret Marsh, ‘Suburban Men and Masculine Domesticity, 1870-1915,’ American Quarterly 40, 2 (1988): 181; A. J. Hammerton Cruelty and Companionship (London: Routledge, 1992); E. Anthony Rotundo, ‘Learning about Manhood: Gender Ideals and the Middle-Class Family in Nineteenth Century America,’ in Manliness and Morality: Middle-Class Masculinity in Britain and America, ed. J. A. Mangan and James Walvin (Manchester: Manchester University Press, 1987), 35-61. 91 scouts) to create a thoroughly homosocial experience of boyhood separate to girlhood.11 In Melbourne and Sydney, bohemian writers and artists pushed against the idea of domestic life in their mythologization of the lone bushman, a supposedly independent and physically superior male figure whose hard labour harked back to traditional masculine prowess.12 A greater concern to the establishment were the male youths known as larrikins who loitered the streets and challenged social mores through pastimes crafted around idleness, violence and sex. Down to every detail of his ensemble, including the pointed boots, tight bell-bottom trousers, his jaunty hat and clean-shaven face, the larrikin ‘mocked the image of the respectable male bourgeois’.13 Within judicial condemnations of male violence against women, middle-class values were prescribed to a working class that was overrepresented within the criminal justice system. Defendants increasingly strove to portray themselves in terms seen as respectable before the court, and loved ones and activists did the same in their letters and petitions. The narrative of temporary insanity became a popular feature in post-trial petitions, allowing activists to present the prisoner’s act as out of character: a bout of madness that had struck an otherwise respectable and honest man. Working-class men advocated for the temporary insanity of fellow workers and soldiers using the terminology of middle-class judges and lawyers. Conversely, male prisoners who did not sufficiently emulate bourgeois values were denigrated through a language of Linzi Murrie, ‘The Australian Legend: Writing Australian masculinity/writing ‘Australian’ masculine,’ Journal of Australian Studies 22, 56 (1998): 71; David Rosen, The Changing Fictions of Masculinity (Illinois: University of Illinois Press, 1993): 181. 12 Melissa Bellanta, ‘The Leary Larrikin’: Street Style in Colonial Australia,’ Cultural and Social History 11, 2 (2014): 263-283; Richard White, Inventing Australia: Images and Identity, 1688-1980 (Sydney, 1983): 92-101; Graeme Davison, ‘Sydney and the Bush: An urban context for the Australian Legend,’ Historical Studies 18, 71 (1978): 191-209. 13 Melissa Bellanta, ‘The Leary Larrikin’; John Rickard, ‘Lovable larrikins and awful ockers’ Journal of Australian Studies 22, 56 (1998): 79; James Murray, Larrikins: 19th Century Outrage (Melbourne: Lansdowne Press, 1973), 32-33. 11 92 hereditary lunacy. The contrast between these extremes will be elucidated in this chapter through two case studies: that of James Johnston (1891) and Frederick Deeming (1892). Contextualising male-perpetrated homicide Murder was the most common offence among convicted capital cases between 1880 and 1939, constituting 56 percent of cases.14 Of that sample, men were overrepresented in convictions, with 91 were convicted male-perpetrated murders compared with 28 female-perpetrated murders. Intimate partner homicide refers to murder where the victim and offender share a current or former intimate relationship, including extramarital relationships.15 Twenty-three men were convicted of intimate partner homicides, or 25.27 percent of all men convicted for murder in the period. The decade 1890-1899 saw the highest concentration of convicted intimate partner homicides at 36.36 percent of all convicted male intimate partner homicides in the period.16 The decade 1890-1899 also witnessed the highest execution rate of male-perpetrators: 63.63 percent of all convicted male-perpetrators were executed, and this was even more acute among intimate partner homicide offences, with an execution rate of 87.50 percent.17 In examining where and how insanity narratives were used in cases of intimate partner homicide, these trials offer insight into how lawyers, judges as jurors applied ideas of responsibility to killings perpetrated in contexts of jealousy and retaliation. 14 n= 120 of 214 cases. Capital Case Files (VPRS 264) and Capital Sentences Files (1100). ‘Murder’ includes infanticide and killing resulting from abortion. 15 Willow Bryant and Tracy Cussen, Homicide in Australia, 2010-12 to 2011-12: National Homicide Monitoring Program report (Canberra: Australian Institute of Criminology, 2015). 16 n= 8 of 22 cases. 17 n=14 of 22 cases overall. Seven of the eight men convicted for intimate partner homicide were executed. 93 Despite popular anxiety regarding working-class youth in the city and the burgeoning romanticisation of the bush, Victoria’s capital murder trials demonstrate that criminality was not limited to the city.18 Just under half of convicted murders occurred in rural parts of the state: places such as Hamilton, Ararat, Ballarat, Beechworth and Healesville.19 Trial documents and press coverage accessed through the National Library show that a large number of male defendants were employed in agricultural labour and domestic service roles such as hotel staff or stableboys.20 Over a third of male offenders found guilty of murder in the period were executed, the majority of executions taking place before 1900.21 The death penalty remained a real prospect for prisoners of the period, despite the increasingly popular movement to abolish capital punishment.22 Australian colonies continued the English tradition of punishment whereby murder, the most substantial harm to the social body, was punished by the ‘destruction of the physical body of the condemned.’23 The Executive were more tentative in proceeding with the death penalty for crimes such as rape and burglary, where no life had been taken.24 The spate of executions in the 1890s was likely the product of the Earl of Hopetoun’s conservative Governorship (18891895), as well as anxieties that accompanied financial depression and the influence of certain trial judges at the time.25 18 Crotty, Making the Australian Male, 15-16. n= 41, or 45 percent. 20 n= 55, or approximately 60 percent. 21 40 of 91 cases. Of the period, only 14 men were executed after 1900. 22 Finnane, Punishment in Australian Society, 75. 23 Randall McGowen, ‘The body and punishment in eighteenth-century England,’ The Journal of Modern History 59, 4 (1987): 666; Tim Castle, ‘Watching them hang: Capital punishment and public support in colonial New South Wales, 1826-1836,’ History Australia 5, 2 (2008): 43.4. 24 Cases such as R v Jennings (1897), where a father wrote to the Executive to spare the life of the prisoner who had sexually assaulted his daughter, are illustrative of this attitude and will be further explored in Chapter Six. 25 This data sample reflects Douglas and Laster’s findings that Justices Hodges, Holroyd and Macfarlane had low execution rates, while Justices Williams and Molesworth were more likely to be 19 94 With life and death hanging in the balance, petitioners exerted a self-aware pressure on the Executive council. Trials were not viewed in isolation and decisions were not soon forgotten. As one lawyer wrote to the Governor in the 1892 case of Frederick Deeming: ‘the killing of Johnston, Wilson, Phelan, Colston and Fatta Chand’, the five men executed in the year 1891, ‘are fresh in the public mind.’26 While offenders did not receive the support of organisations and benevolent societies that infanticide offenders did, family members, local citizens and colleagues rose to the occasion. In some cases, certain pockets of Melbourne revealed a substantial number of men (and some women) willing to sign for the reprieve of a male prisoner. Both during trials and in post-trial petitions, contemporaries argued that a culmination of grievances that had provoked the offender to ‘snap’ and murder in a fit of temporary insanity. Masculinity and violence in Australian history In recent decades, masculinity has taken a central position in historical understandings of Australia and Australianness, particularly in studies of frontier expansion, war and migration.27 Martin Wiener and John Tosh outline the contours of a dominant English ‘hanging judges’. Richard Douglas and Kathy Laster, 'A Matter of Life and Death: The Victorian Executive and the Decision to Execute 1842- 1967,' Australian & New Zealand Journal of Criminology 24, 2 (1991): 150. 26 Marshall Lyle to the Governor of Victoria, 10 May 1892, 4. R v Williams VPRS 264, P0000/21. 27 See Russel Ward, The Australian Legend (Oxford: Oxford University Press, 1978); Graeme Davison, ‘Rethinking the Australian Legend,’ Australian Historical Studies 43, 3 (2012): 429-451; Bart Ziino, ‘Eligible men: men, families and masculine duty in Great War Australia,’ History Australia 14, 2 (2017): 202-217; Bill Gammage, The Broken Years: Australian Soldiers in the Great War (Canberra: Australian National University Press, 1974), 84-5; Marilyn Lake, ‘Mission Impossible: How Men Gave Birth to the Australian Nation– Nationalism, Gender and Seminal Acts,’ Gender and History 4, 3 (1992): 305-322; Joy Damousi and Marilyn Lake, (eds.) Gender and War: Australians at War in the Twentieth Century (Melbourne: Melbourne University Press, 1995); Stephen Garton, ‘War and masculinity in twentieth century Australia,’ Journal of Australian Studies 22, 56 (1998): 86-95; Kay Saunders, ‘Specimens of Superb Manhood: The Lifesaver as National Icon,’ Journal of Australian Studies 22, 56 (1998): 96-105; Kate Murphy, ‘The ‘Most Dependable Element of Any Country’s Manhood’: Masculinity and Rurality in the Great War and its Aftermath,’ History Australia 5, 3 (2008): 72.1-72.20; Stephen Garton, The Cost of War: Australians Return (Oxford: Oxford University 95 Victorian manliness, showing that self-restraint, rather than violence, was integral to respectable masculinity during the early and mid-nineteenth century, a period in which a prescriptive set of virtues developed not only for English womanhood, but for English manhood as well.28 Tolerance for male aggression and violence within the family waned as social concerns regarding interpersonal violence, the protection of women, children and animals, and, towards the end of the century, the self-appointed position of Britain as a ‘civilising’ Empire.29 Where in the seventeenth and eighteenth centuries it was culturally normative for men to settle matters of insult and honour through violence, nineteenth-century bourgeois masculine conduct required reasonableness, prudence and self-control.30 In the Australian colonies this restrained bourgeois masculinity developed alongside other, more class-based modes of masculinity. The context of early frontier violence depended upon a violent, authoritative masculinity that did not correspond with the ‘domestic and benign’ manliness middle-class reformers.31 However, Rebecca Wood has shown how white male violence was positioned as protective, civilised and decent against ‘irrational’ and ‘unnatural’ violence of Aboriginal men in the 1830s.32 Press, 1996); Christina Twomey, ‘Emaciation or emasculation: photographic images, white masculinity and captivity by the Japanese in World War Two,’ The Journal of Men’s Studies 15, 3 (2007): 295-311. 28 Martin Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: Cambridge University Press, 2004); John Tosh, Manliness and Masculinities in Nineteenth-Century Britain (Harlow, England: Pearson Longman, 2005). 29 See in particular Martin Wiener, Men of Blood, 29-39; John Tosh, ‘The Old Adam and the New Man: Emerging Themes in the History of English Masculinities, 1750-1850,’ in English Masculinities 1660-1800, ed. T. Hitchcock and M. Cohen (London, 1999), 217-238; John Tosh, A Man’s Place: Masculinity and the Middle-Class Home in Victorian England (New Haven: Yale University Press, 1999). 30 Wiener, Men of Blood, 6; Danielle Tyson, Sex, Culpability and the Defence of Provocation (London: Routledge, 2013), 30-31; Jeremy Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1992). 31 Angela Woollacott, ‘Frontier Violence and Settler Manhood,’ History Australia 6, 1 (2009): 11.13. 32 Rebecca Wood, 'Frontier Violence and the Bush Legend: The Sydney Herald's response to the Myall Creek Massacre trials and the creation of colonial identity,' History Australia 6, 3 (2009): 67.7. 96 Violence, imagined and enacted, played a key part in the construction of Australian masculinities for the duration of the nineteenth and early twentieth centuries. Mental illness often features as part of the equation between masculinity and social understandings of domestic violence in Australian histories. Contemporary discussions around domestic violence have reawakened a scholarly interest in a history that had previously been confined to the domain of ‘women’s history’, as initiated by Miriam Dixson, Anne Summers, and Judith Allen.33 Recent First World War scholarship argues that conceptions of ‘shell shock’ were used to explain domestic violence among returned servicemen and saw the emergence of a pervasive cultural stereotype in the ‘disturbed and dangerous’ returned soldier.34 However, other studies suggest that the ‘disturbed soldier’ was a phenomenon that had continuities with a broader and earlier trend of attributing mental instability to violent husbands and fathers. Andy Kaladelfos’ study of paternal homicide in Australia (1880-1954) demonstrates how discourses of insanity often surfaced in trials where the male offender’s authority as head of household had been challenged. 35 These defendants elicited sympathy from jurors and the wider public, who perceived the violence as an understandable reaction to disrespect from female family members, leading Kaladelfos to suggest that ‘the emotions of the family’ are more central to constructions of 33 See Alana Piper and Ana Stevenson eds, Gender Violence in Australia: Historical Perspectives (Melbourne: Monash University Publishing, 2019); Miriam Dixson, The Real Matilda (Melbourne: Penguin, 1976); Ann Summers, Damned Whores and God’s Police (Sydney: UNSW Press, 1975); Judith Allen, Sex and Secrets: Crimes involving Australian women since 1880 (Oxford: Oxford University Press, 1990). 34 Elizabeth Nelson, Homefront Hostilities: The First World War and Domestic Violence (Melbourne: Australian Scholarly Publishing, 2014), 69-115; Elizabeth Nelson, 'Victims of War: The First World War, Returned Soldiers and Understandings of Domestic Violence in Australia,' Journal of Women's History, 19, 4 (2007): 86-106; Elizabeth Nelson, 'Civilian Men and Domestic Violence in the Aftermath of the First World War,' Journal of Australian Studies 27, 76 (2003): 97-108. 35 Andy Kaladelfos, ‘The dark side of the family: Paternal child homicide in Australia,’ Journal of Australian Studies 37, 3 (2013): 345. 97 Australian masculinity and male violence than has previously been acknowledged.36 Studies conducted by Allen, Nelson and Kaladelfos focus primarily on the nature and broad patterns of domestic violence, affording limited space to explore the constructions of mental illness in these cases. The discussion that follows aims to provide a broader view of how traditional male honour-based violence was increasingly interpreted as an act of mental instability within the colonial context. Contextualising domestic violence and intimate partner homicide, 1880-1914 There was considerable concern about ‘wife beating’ in the colonies, with journalists lamenting this issue as one among a litany of crimes they perceived as stains on Melbourne’s international reputation.37 The late-nineteenth century saw increased attention to women’s rights, with some arguing that the treatment of women by a society ‘was a test of its civilisation’.38 Prevention was the aim of organisations such as the Women’s Christian Temperance Union (WCTU), which identified the exorbitant colonial drinking culture as the root cause of gendered violence.39 Although some historians have characterised WCTU members as hand-wringing, middle-class women who sought to impede on working-class men’s—and women’s—enjoyment of vice, Marilyn Lake and Judith Allen demonstrate how their advocacy for earlier closing times in pubs, anti-gambling laws and to raise the age of consent were all concerted efforts to Kaladelfos, ‘The dark side of the family,’ 345. ‘To the Editor of the Star,’ Ballarat Star, 10 Feb 1882, 3; Ballarat Star, 8 Aug 1883, 2. 38 Herald, 28 Jun 1886, 2. 39 On the WCTU generally see Anthea Hyslop, ‘Temperance, Christianity and feminism: The Women’s Christian Temperance Union of Victoria, 1887-97,’ Australian Historical Studies 17, 66 (1976): 27-49; Ian Tyrrell, ‘International Aspects of the Woman’s Christian Temperance Movement in Australia: The influence of the American WCTU, 1882-1914,’ Journal of Religious History 12, 3 (1983): 284-304; Patricia Grimshaw, ‘Gender, citizenship and race in the Women’s Christian Temperance Union of Australia, 1890 to the 1930s,’ Australian Feminist Studies 13, 28 (1998): 199-214. 36 37 98 stymie the very real problem of domestic violence.40 Organisations such as the WCTU – though certainly promoting Evangelical Christian values that many early feminists identified with – were an avenue through which women could organise around specifically female issues. 41 Other discourses of reform centred around punishment and general deterrence through exemplary use of flogging. Journalists remarked upon the practices of flogging on criminals in the U.S. and Britain, arguing that the practice could ‘stamp out’ wife-beating in the colonies.42 In the 1880s, WCTU members such as Bessie Harrison Lee began to speak out against marital violence, yet domestic abuse continued as a pervasive problem in Melbourne.43 Elizabeth Nelson describes the ‘shocking archive’ of wife abuse in the pre-war period, documenting the ways in which husbands ‘variously kicked, punched, bit, slapped, stabbed, pinched, spat on, burnt, throttled or raped their wives.’44 Women suffered from domestic abuse in silence, as the glimpses in historical accounts powerfully attest. Battered working-class women living in Little Lonsdale Street rarely approached neighbours or police, seeking refuge with Anglican sisters at a neighbouring church instead.45 Sisters visited homes on several occasions to find 40 Marilyn Lake, ‘The Politics of Respectability: Identifying the masculinist context,’ Australian Historical Studies 22, 86 (1986): 116-131; Chris McConville, ‘Rough women, respectable men and social reform: A response to Lake’s ‘masculinism,” Australian Historical Studies 22, 88 (1987): 432440; Judith Allen, ‘Mundane Men: Historians, masculinity and masculinism,’ Australian Historical Studies 28, 95 (1987): 617-628; Renate Howe, ‘Agents of Change: Women’s social reform networks in Melbourne,’ Victorian Historical Journal 79, 2 (2008): 328-339. 41 Jocelyn Pixley, ‘Wowser and Pro-Woman Politics: Temperance against Australian Patriarchy,’ Australia and New Zealand Journal of Sociology 27, 3 (1991): 293-314. 42 Kilmore Free Press, 16 May 1889, 3. Victoria introduced flogging as an additional punishment to commuted capital sentences in 1871, and it was most commonly ordered in cases of rape, carnal knowledge and buggery. Laster, ‘A Matter of Life and Death,’ 155. 43 Bessie Harrison Lee, Herald, 8 Oct 1888; Louisa Lawson, ‘The Divorce Extension Bill,’ Dawn, Mar. 1890. 44 Nelson, Homefront Hostilities, 7-8. 45 Elizabeth Willis, ‘Researching the Women of Little Lon,’ The Artefact 26, 1 (2003): 9. 99 battered women, strongly indicating that women affected by family violence did not view neighbours or police as reliable sources of aid.46 There was an overt culture of public non-interference regarding matters between husband and wife. Violence inflicted by husbands was considered a private matter; to confront a husband would be to question his household authority. A resident of turnof-the-century Richmond recalled: It was quite common for men to bash their wives and the strange thing was, if you were to kick a dog another man would kick you. But if you were having an argument with your wife nobody would interfere.47 A 1901 incident saw Alice Nash running from her violent husband, attempting to seek refuge with her neighbour next door. In Edwin Nash’s trial for Alice’s murder, the neighbour explained that he had ignored her cries, thinking ‘it was an ordinary domestic trouble’.48 It was in the next year that the Australian Women’s Sphere warned readers of the ‘increasing number of murders and attempted murders’ of women by husbands and suitors.49 Minor assaults did not seem to perturb witnesses. Charles Turnbull, a Melbourne labourer, saw his acquaintance Frederick Jordan grab his wife Minnie Hicks by the hair in 1894. ‘Here, don't murder the woman in my house’, Turnbull said to Jordan, ignoring Minnie’s screams for assistance. ‘Take her home if you want to kill her.’50 Turnbull would only find out later that Jordan did kill his wife that very night. The tolerance given to domestic abuse can be attributed to contemporary understandings of marital relationships and definitions of violence. The Marriage and Matrimonial Causes Statute 1864 allowed wives to petition for divorce on grounds of Willis, ‘Researching the Women of Little Lon,’ 9. Janet McCalman, Struggletown: Public and Private Life in Richmond 1900-1965 (Melbourne: Melbourne University Press, 1984), 26. 48 ‘Shocking Wife Murder,’ Ballarat Star, 31 Dec 1900, 6; R v Nash (1901) VPRS 264 P0000/26. 49 Australian Women's Sphere, vol. 2, no. 19, March 1902, p. 151. 50 ‘The Execution of Frederick Jordan,’ Argus, 21 Aug 1894, 5. 46 47 100 adultery or adultery ‘coupled with cruelty’, ‘cruelty’ constituting acts of bigamy, sodomy, rape, incest or bestiality, or desertion without reasonable excuse for a period exceeding two years.51 The Divorce Act 1899 (Vic.) extended the grounds of cruelty to include any harm that placed a wife’s ‘health and security of life or limb’ at serious risk, although this standard remained difficult to satisfy. Claims of cruelty could fail where there was insufficient evidence of physical wounds or where a wife’s disobedience in the marital relationship could be alleged.52 Divorce proceedings reveal that culturally and legally, minor assaults between spouses were not considered reprehensible. The legal system failed abused wives, as evidenced by women who lived apart from the family home in an attempt to escape routine violence who were later murdered by estranged husbands. Intimate partner homicides were often the result of escalated domestic abuse incidents. The thirteen women murdered between 1880 and 1914 suffered gunshot wounds, cuts or fatal beatings. At John Anglin’s trial for the murder of his wife in 1889, it was revealed that in the first few months of their marriage he had endeavoured to twist her arms out of their sockets so as to ‘prevent her from earning a living in the event that she left him’.53 Edwin Nash shot his wife after he demanded money for alcohol in their Richmond home in 1901.54 Frederick Jordan killed his girlfriend Minnie when he found her out of the house, drinking with friends.55 Women who had endeavoured to escape marriages, such as Katherine Norton, Annie Pridmore, Jane 51 Marriage and Matrimonial Causes Statute 1864 (Vic) Part VI, s. 62. See for example ‘Williams v. Williams,’ The Age, 12 Aug 1896, 6; ‘Divorce’, Free Lance, 12 Sep 1896, 2. 53 Judge’s notes, R v Anglin (1889) VPRS 264 P0000/13, p. 1. 54 R v Nash (1901) VPRS 264 P0000/26. 55 R v Jordan (1894) VPRS 264 P0000/23. 52 101 Deutschmann and Elizabeth Gray were located and murdered by their estranged husbands. 56 Suspected infidelity was the most common motive for murder of estranged partners. John Phelan murdered his former paramour when he found that she was living with another man, employed as his housekeeper.57 John Wilson killed his fiancé Stella Marks after spotting her ‘leaning on the arm’ of a male acquaintance one morning as he travelled past in a tram, while George Fagan shot his wife Jane five times after finding a letter in her possession from another man. 58 Kittie Beachley, a domestic servant who had been intimate with James Rouhan for several months, attended a dance against his wishes. 59 On finding that she had disobeyed him, Rouhan confronted her at the dance and requested that she leave with him. When Kittie refused, Rouhan drank heavily and waited until she left the dance at a quarter to one. He then struck her several times with an axe, fracturing her skull. Official notes passed to the Executive Council in these cases frequently mentioned the ‘chastity’ of the victim, whether ascertained or in doubt.60 Although many of these cases contained an allegedly triggering action on the part of the victim, lawyers rarely sought to argue the mitigating defence of provocation. Provocation was available as a partial defence, meaning that it could reduce a charge of murder to that of manslaughter where a defendant intended to kill or cause grievous 56 R v Buck (1895) VPRS 264 P0000/24; R v Pridmore (1900) VPRS 264 P0000/26; R v Deutschmann (1908) VPRS 264 P0000/27. 57 R v Phelan (1891) VPRS 264 P0000/19. 58 R v Wilson (1891) VPRS 264 P0000/19; R v Fagan (1902) VPRS 1100 P0002/3. 59 R v Rouhan (1905) VPRS 264 P0001/4 60 For instance, in Justice Henry Hodges’ case notes for the trial of John Anglin for the murder of his estranged wife in 1889, he wrote: ‘throughout the case it was not disputed that Mrs Anglin was a chaste wife, and there was no ground for the Prisoner’s jealousy.’ Judges notes, R v Anglin (1889) VPRS 264 P0000/13, p. 1. 102 bodily harm but ‘his intention to do so arose from a sudden passion involving loss of control by reason of provocation’.61 However, the legal elements required to argue provocation were seldom in defendants’ favour. The more time that elapsed between the provocation and the killing, the more difficult it was to prove the killing was the result of a loss of self-control and that no composure had been regained in that time.62 The time between Rouhan’s confrontation and his attack with an axe was just under two hours; over twenty-four hours passed between Wilson spotting Stella with another man from a passing tram and the moment he cut her throat.63 In addition, the act needed to be proportionate, in the eyes of a reasonable man, to the provocation received.64 The requirements of provocation were extremely difficult to satisfy in court. Temporary insanity as an explanatory tool in intimate partner homicides A complex phenomenon, male ‘temporary insanity’ was put forward by a myriad of voices that crossed class boundaries. The idea of temporary madness occurring in an otherwise healthy individual certainly originated from the mad-doctors of England and France at mid-century, with the diagnosis of ‘monomania’ describing an individual’s madness on one point, with ‘homicidal monomania’ consisting of an irresistible urge to kill.65 Though French and English psychiatrists had largely abandoned monomania Colin Howard, ‘Provocation and Homicide in Australia,’ The Australian Law Journal 33 (1960): 324. 62 Howard, ‘Provocation and Homicide,’ 325. 63 R v Rouhan (1905) VPRS 264 P0001/4; R v Wilson (1891) VPRS 264 P0000/19. 64 Howard, ‘Provocation and Homicide,’ 325; Horder, Provocation and Responsibility, 90-92. 65 This was one form of moral insanity, advanced by French psychiatrist Jean Etienne Esquirol in the early nineteenth-century. For the development of the diagnosis in France, see Jan Goldstein, ‘Professional Knowledge and Professional Self-Interest: The Rise and Fall of Monomania in 19thCentury France,’ International Journal of Law and Psychiatry 21, 4 (1998): 385-396. For development elsewhere, see David W. Jones, 'Moral insanity and psychological disorder: the hybrid roots of psychiatry,' History of Psychiatry 28, 3 (2017): 263-279; Catharine Coleborne, Reading Madness: Gender and difference in the colonial asylum in Victoria, Australia, 1848-1888 (Perth: API network, 2007), 42-55; Dermot Walsh, 'The birth and death of a diagnosis: monomania in France, Britain and in 61 103 as a diagnosis by the 1870s, colonial psychiatrists continued to employ the term in criminal cases.66 However, colonial psychiatrists were not volunteering their services or promoting such a diagnosis in testimony, publications or to the press; their opinion continued to be tentative in these trials. There are other reasons why the idea of temporary insanity quickly gained popularity and legitimacy within the legal system. For one, legal counsel recognised the ease with which insanity could be put forward as a defence in comparison to provocation. Rather than needing to satisfy the elements of provocation, the defence need only argue that the defendant was insane and did not know right from wrong at the time of the crime. While this itself was a high threshold, insanity was easier to argue in a period where insanity itself was ill-defined and ambiguous, and in the colonial setting, where psychiatrists had yet to consolidate their authority over criminal insanity. Witnesses could persuasively testify to odd behaviour and falls in childhood.67 In addition, the male-perpetrated murder of intimate partners attracted explanations of positive emotions—love, affection, devotion— driving men insane. Jurors were sympathetic to this framing of events, easily drawing the link between excessive male emotion and acts of violence. In rare cases such as that of John Wilson, his solicitor allegedly complained to his religious minister that Wilson’s friends would not exaggerate accounts of madness to secure their friend’s acquittal, much to the lawyer’s frustration.68 Ireland,' Irish Journal of Psychological Medicine 31 (2014): 39-45; Ruth Harris, Murders and Madness: Medicine, Law and Society in the Fin de Siecle (Oxford: Clarendon Press, 1989), 7-8; Bill Bynum, ‘Discarded Diagnoses: Monomania,’ The Lancet 362 (2003): 1425. 66 Coleborne, Reading Madness, 42-55. The diagnosis only surfaced in one trial from this sample, put forward by a Dr Lethbridge of Alexandra in the trial of R v Anglin (1889) VPRS 264 P0000/13. 67 See R v Phelan (1891) VPRS 264 P0000/19; R v Wilson (1891) VPRS 264 P0000/19; R v Johnston (1891) VPRS 264 P0000/19; R v Deutschmann (1908) VPRS 264 P0000/27. 68 Brown to Molesworth, undated R v Wilson (1891) VPRS 264 P0000/19. 104 In addition, defendants themselves increasingly described their own actions in terms of mental aberration. Their words were captured in police reports or heard by doctors or warders in prison before trial. While later confessions were likely a strategy advised by their legal counsel, defendants’ immediate confessions of madness upon handing themselves over to police or on arrest suggests a broader cultural change in how people understood their own behaviour. Here we see, as Joel Eigen has similarly noted in the language of defendants in London between 1760 and 1843, ‘the currency’ of insanity or ‘the notion of behaviour unattended by consciousness’.69 James Rouhan muttered that he ‘could not realise what had happened’ when he murdered his girlfriend Kittie Beachley. In 1895 Charles Strange confirmed in a police statement that he suffered severely from epileptic fits, and that the reason he separated from his wife was that ‘he was afraid lest in a fit of passion he would kill her.’70 The language of defendants is another avenue through which to explore how everyday people conceptualised insanity in their own actions, and points to the language of insanity as a verbal armoury through which defendants could attempt to legally protect themselves. Forming part of this cultural ‘currency’ that attended insanity claims, ordinary people in their capacity as jurors, witnesses and petitioners drew a connection between the murder of an intimate partner and a perceived mental lapse. Evidence that the perpetrator had deeply ‘loved’ his victim was antithetical to the killing, leading Victorians to infer that the perpetrator had been so blinded with emotion as to be insane. The perpetrator’s ‘respectability’—his adherence to bourgeois values regarding religion, honest labour and family responsibilities— also appeared antithetical to the 69 Joel Eigen, Witnessing Insanity: Madness and Mad-Doctors in the English Court (New Haven: Yale University Press, 1995), 173. 70 R v Rouhan (1905) VPRS 264 P0001/4; R v Strange (1895) VPRS 264 P0000/24. 105 act of murder, strongly adding, in the eyes of jurors, to the probability of a mental illness. Perhaps most importantly, insanity was alleged most often where it could be shown the female victim had angered or provoked the male perpetrator in some way, leading to a ‘frenzy’ or ‘snap’. In this sense, temporary insanity was a way in which to explain why loving, respectable men killed women who transgressed sexual boundaries. Such narratives did not ‘feminise’ the actions of these men, but rather, they were put forward in ways that differed markedly to those put forward in femaleperpetrated infanticide trials. Such narratives served to reinforce defendants’ actions as inherently and understandably masculine. Defence counsel tapped into these misogynistic and cultural assumptions at trial. Insanity was effectively raised as a stand-in for provocation narratives, and certain trials reveal the circular relationship between the two narratives. John Phelan’s (1891) counsel put forward the defence of insanity and Justice Molesworth clearly outlined that ‘mental excitement, jealousy or strong passion is not enough to excuse the crime.’71 The jury, evaluating the case on their own terms, recommended mercy on the basis of provocation. Similarly, James Rouhan’s (1905) counsel presented a defence of insanity at trial. The jury recommended Rouhan to mercy ‘on the grounds of his youth, and the provocation to jealousy which he had received’, despite no argument of provocation having been put forward.72 Trials of intimate femicide in the past can be assessed in terms of a theory Elizabeth Rappaport has named the ‘domestic discount’: the inclination of judges and 71 72 R v Phelan (1891) VPRS 264 P0000/19. R v Rouhan (1905) VPRS 264 P0001/4. 106 jurors to treat femicidal killers more leniently.73 Carolyn Strange employs this theory in a study of NSW capital trials between 1890 and 1920, demonstrating how the Executive Council was less likely to impose the death penalty where men had killed wives or sexual partners.74 Trials for femicide in Victoria suggests that the same tendency did not exist on the part of the Executive in respect to the same period. The Executive maintained a hard stance on this category of murder, despite impassioned petitioning and post-trial activism on behalf of these offenders. Intimate partner homicide and post-trial activism, 1880-1914 Men who killed intimate partners received letters and petitions on the basis of insanity far more than those who killed acquaintances or strangers, suggesting there may have been more public sympathy for this specific type of offender. Of the 13 trials for intimate partner homicide between 1880 and 1914 that featured a claim to insanity, eight defendants received public petitions for mercy due to their believed madness.75 Ninety-two residents in Gray’s local area of Branxholme and Hamilton signed a petition for his mercy on the basis of his delusion of infidelity. Three local residents similarly argued John Anglin to have acted under an insane delusion when he shot his estranged wife in 1889, and 1,174 Victorians from across the state signed a petition attesting that John Phelan was in a state of frenzy when he murdered his former paramour Ada Elizabeth Rappaport, ‘The Death Penalty and the Domestic Discount,’ in The Public Nature of Private Violence, ed. M. Fineman and R. Mykitiuk (New York: Routledge, 1994), 224-252. See also Rappaport, ‘The Death Penalty and Gender Discrimination’ Law and Society Review, 25, 2 (1991): 367-83; Rappaport, ‘Some Questions about Gender and the Death Penalty,’ Golden Gate University Law Review 20 (1990): 501-65. 74 Strange, 'Masculinities, Intimate Femicide and the Death Penalty in Australia,’ 311-321. 75 These trials are R v Gray (1884) VPRS 264 P0000/10; R v Anglin (1889) VPRS 264 P0000/13, R v Phelan (1891) VPRS 264 P0000/19; R v Wilson (1891) VPRS 264 P0000/19; R v Johnston (1891) VPRS 264 P0000/19; R v Pridmore (1900) VPRS 264 P0000/26; R v Rouhan (1905) VPRS 264 P0001/4; R v Manning (1908) VPRS 264 P0000/27. 73 107 Hatton.76 Thousands of petitioners across Melbourne believed John Pridmore to be, if not insane at the time of murdering his wife, then ‘his mind so considerably affected’ after their separation.77 Petitioners from James Rouhan’s hometown of Ballarat believed, as had been alleged in court, that Rouhan had suffered an epileptic fit when he murdered Kittie Beachley.78 Post-trial activism regarding male prisoners was often a local affair. The Victorians who sent letters or small petitions to the Executive Council regarding male prisoners were often acquainted with the accused as family, friends or co-workers. In the case of larger rural petitions, signatories may not have known the accused but resided in his town or district and were galvanised by a community effort to secure his mercy. The petitioners for John Gray and James Rouhan were exclusively male, the majority local farmers and labourers.79 In addition, rural crimes attracted less press coverage compared to those committed and tried in and around Melbourne. This accounts for the great number of signatories in Phelan’s case, signing with addresses from inner suburbs such as South Yarra, Richmond and Carlton.80 Petitions outnumbered letters in post-trial activism for male offenders. The few letters sent to the Executive came from male religious ministers who had known the male defendant for years, and through a language of insanity, acted in an effort to save not only the prisoner but his soul.81 76 Petition to the Governor, R v Anglin (1889) VPRS 264 P0000/13; Petition to the Governor, R v Phelan (1891) VPRS 264 P0000/19. 77 Petition to the Governor, R v Pridmore (1900) VPRS 264 P0000/26. 78 This petition numbered 82 signatures. Petition to the Governor, R v Rouhan (1905) VPRS 264 P0001/4. 79 Petition to the Governor, R v Gray (1884) VPRS 264 P0000/10. 80 Petition to the Governor, R v Phelan (1891) VPRS 264 P0000/19. 81 Religious ministers wrote on the part of John Gray, John Phelan and Edgar Einsporn. 108 The absence of female signatories, so vocal in cases of rural infanticide, is conspicuous in these petitions. Male femicide offenders did not draw the immediate sympathy of strangers as, unlike infanticide, intimate partner homicide did not hold the overt link to structural oppression of the offender. While female offenders were often supported by benevolent societies and suffrage groups, no petitions on the part of societies or charities were sent on behalf of male offenders. The first widespread network to exclusively petition for male offenders would be the Returned Soldiers and Sailors Imperial League of Australia (RSSILA) in the years during and after WWI.82 Nevertheless, the petitions on behalf of male offenders in the period reveal the gendered nature of support for offenders post-trial. While women did petition and write impassioned letters for some male offenders, they generally fell silent in cases where men had killed their wives or paramours. The letters and petitions begging for mercy on behalf of male prisoners reveal how Victorians sought to reconcile the actions of men who killed those they were supposed to have loved. While temporary insanity had often already been submitted at trial, it was in petitions and letters that working-class men could characterise offenders as they had known them: hard-working, industrious, sober, a man of integrity with no criminal record and family-oriented, fond of wife and children.83 Campbell Wallace, a Presbyterian minister residing in Branxholme, wrote of John Gray’s conduct in the twenty years he had lived in the district as being ‘clear of any aspersions of drunkenness or turbulence or bad neighbourship (sic) in any way.’84 Pointing to qualities of hard- 82 R v Budd (1917) VPRS 264 P0000/30; R v Oldring (1918) VPRS 264 P0001/7. These cases will be discussed in Chapter Five. 83 Petition to the Governor, R v Gray (1884) VPRS 264 P0000/10; Petition to the Governor, R v Pridmore (1900) VPRS 264 P0000/26. 84 Letter from Campbell Wallace to the Governor, 29 Feb 1884, R v Gray (1884) VPRS 264 P0000/10. 109 work and sobriety, petitioners pointed to traits that society valued in male citizens and removed the offender from the category of the habitual ‘criminal class’ to a class of rare, one-time offenders. The murderous actions of male defendants who had otherwise been upstanding husbands, fathers and Victorian citizens were portrayed as the product of a temporary mental aberration. Campbell Wallace positioned Gray’s uncharacteristic act of killing as a result of ‘monomania’, the petition outlining how ‘his wife’s misconduct… had in all probability unhinged his mind and deprived him of reason’.85 Campbell’s employment of the term demonstrates how laymen capitalised on the ambiguous diagnoses of temporary insanity in an attempt to save male offenders. John Ellis Stewart, a colonial journalist for twenty years, echoed this diagnosis when wrote to the Governor about his belief that John Phelan was ‘perfectly mad on one point yet as perfectly sane upon all others.’86 In this way, assertions of temporary insanity operated to endorse an offender’s act as one of fleeting madness that required clemency only, as opposed to sustained treatment in a lunatic asylum. Running parallel to illustrations of good character and the nature of temporary madness were disparagements of female victims. John Ellis Stewart described how Ada Hatton, ‘like many of her class, exercised a strange and fascinating influence upon Phelan’.87 Both Ada Hatton and a woman murdered in 1889, Annie Thornton, were prostitutes. The press implied this status when describing Hatton as an ‘ill-used woman’ 85 Petition to the Governor, R v Gray (1884) VPRS 264 P0000/10. Letter from John Ellis Stewart to the Governor, 6 March 1891, R v Phelan (1891) VPRS 264 P0000/19. 87 Letter from John Ellis Stewart to the Governor, 6 March 1891, R v Phelan (1891) VPRS 264 P0000/19. 86 110 whom the police believed to be of ‘a very low character.’88 Similarly, The Age described Annie Thornton as ‘one of the most daring and reckless of abandoned women’, a ‘vagrant and a criminal.’89 However, the press generally viewed the plight of these women with sympathy. Letters and petitions only fleetingly referred to the influence of female victims. Focus tended to remain on the offender, his mental affliction and redemptive qualities of hard work and community involvement. The cases of James Johnston (1891) and Frederick Deeming (1892) present the extreme ends of the spectrum of insanity claims. While middle-class visions for a restrained and sensitive masculinity were slow to penetrate the realities of life for many working-class men, criminal trials of the period demonstrate how middle-class judges, jurors and commentators judged working-class prisoners according to prescriptive standards of masculinity. Strange’s study of 64 capital convictions in fin de siècle NSW investigates the dynamics where middle-class judges and working-class jurors judged the actions of working-class defendants charged with femicide. What Strange terms as ‘hierarchies of masculinity’ operated between the ‘power-holding males’ and the defendants they judged.90 Men who had provided their partner a home, financial security or had courted her in good faith, only to be ‘cuckolded’ or betrayed, were viewed sympathetically. Men who had failed to fulfil their duties as male provider or showed no remorse in court were more often condemned.91 However, in their studies of historical crime in NSW, Allen and Strange also remind us that the class divide ‘did not preclude a cross-class understanding’ of wives’ Geelong Advertiser, 14 Mar 1891, 2; ‘Murder and Attempted Suicide,’ Mount Alexander Mail, 17 Jan 1891, 2. 89 ‘The Carlton Murder,’ The Age, 19 July 1889, 5. 90 Carolyn Strange, 'Masculinities,’ 310. 91 Carolyn Strange, 'Masculinities,’ 312. 88 111 obligations, and some cases, the understandable urge to resort to violence where wives failed to meet them.92 Esteemed judges in intimate partner homicide trials would pass on discreet memos to the Executive Council that expressed the same sentiments regarding justified provocation that were being published in Victorian newspapers and voiced by working-class men in petitions for mercy. Criminal responsibility was questioned most in cases concerning intimate femicide, these cases revolving around accusations of sexual impropriety, marital infidelity and female provocation that transcended class boundaries. The following case studies reveal the interplay between middle-class visions for masculinity and respectability in criminal trials; in the public eye, the gendered nature of the crime often only operated to diminish responsibility where a defendant could be deemed respectable. This distinction was not overtly communicated, but rather arose in how defendants were portrayed in the press and through post-trial activism and in particular, through the public narratives surrounding their mental state. ‘A devoted father and husband’: The case of James Johnston The case of James Johnston, convicted for the familicide of his wife and four children in 1890, presents the strongest example of post-trial community activism on grounds of insanity in the period 1880-1914. This was largely due to Johnston and his family being well known and liked in their town of Ballarat, and the ensuing shock of townspeople on hearing of Johnston’s crime. Early newspaper coverage printed headlines such as ‘A Father’s Sudden Insanity’ and ‘Sudden Madness and its Fearful Consequences’, reporting Johnston’s alleged fall from a horse nine years prior, his 92 Judith Allen, ‘Mundane men,’ 622; Carolyn Strange, 'Masculinities,’ 321-22. 112 periodic headaches and bouts of sunstroke.93 Newspapers communicated disbelief that Johnston could have intentionally killed his family, and this disbelief was inextricably linked to his reputation as a ‘model husband and father’.94 Similarly, friends and neighbours expressed their surprise at the uncharacteristic nature of Johnston’s violence, attributing his actions to mental instability. The Ballarat Star commented that ‘the news came upon the quiet community of Ballarat like a thunderclap’.95 On Monday, 8 December 1890, James Johnston smothered his four children in their beds before shooting his wife and attempting to poison himself in their Ballarat home.96 Johnston survived, and after having recovered from the effects of strychnine in hospital, he was arrested and tried for the murder of his family. Johnston was 35 years old, a stock and station agent who had lived in Ballarat for seven years. His police report noted that he was ‘said to be an affectionate husband and father’.97 Details emerged of Johnston’s financial debts, his forgery of cheques and behaviour that could suggest premeditation of the crime.98 However, newspapers laid great stress on Johnston’s character as a well-known businessman and an upstanding member of his community. Johnston’s favourable qualities rested on his positive role as father and husband. His respectability was shown through a ‘host of friends’, Johnston’s ‘strictly temperate habits’, his regular attendance at church and his visits to the Turf Club races with his wife on Saturdays.99 Emphasis was placed on Johnston’s affection for his children and Ballarat Star, ‘A Horrible Tragedy,’ 10 Dec 1890, 4; Hamilton Spectator, ‘Terrible Domestic Tragedy at Ballarat,’ Hamilton Spectator, 11 Dec 1890, 3. 94 Ballarat Star, ‘A Horrible Tragedy,’ 10 Dec 1890, 4. 95 Ballarat Star, 10 Dec 1890, 4. 96 Colac Herald, 12 Dec 1890, 4. 97 Police report, R v Johnston, VPRS 1100 P0002/1. 98 Colac Herald; Portland Guardian. 99 Mount Alexander Mail, 10 Dec 1890, 2. 93 113 the enduring ‘lovingness’ expressed towards his wife.100 Various papers echoed the sentiment of the Hamilton Spectator in commenting that ‘evidently his mind was unhinged at the time, for he is spoken of as the kindest of fathers and the best of husbands’.101 Newspapers and citizens concluded that Johnston’s character, strongly tied to his familial role, confirmed his insanity at the time of the crime. Assertions of Johnston’s insanity proliferated in the coverage of his arrest. Newspapers intimated insanity in the extreme, the Portland Guardian offering a colourful example: Of a kind disposition, respected by a host of friends, a kind father and loving husband, of strictly temperate habits and the personification of integrity and honesty, in a fit of temporary madness, Mr. Johnston became a wild demon and massacred all whom he held most dear...102 Other papers attributed Johnston with ‘a madman’s cunning’ and homicidal mania, making clear the discontinuity between the unrecognisable acts of the killer and the man the community had known and loved.103 Johnston would rely on this narrative to save him at trial, where medical and judicial opinion was pitted squarely against that of the public. Johnston’s counsel did not call any medical witnesses, but relied on Johnston’s family, friends and employees to testify to the prisoner’s insanity. Johnston’s siblings confirmed that he met with an accident in May 1881, falling from his horse and injuring his spine. The defence argued that this incident induced a change in Johnston’s personality, echoing contemporary belief in the physical causes of insanity.104 Friends ‘Terrible tragedy at Ballarat,’ Mount Alexander Mail, 10 Dec 1890, 2. ‘Terrible Domestic Tragedy at Ballarat,’ Hamilton Spectator, 11 Dec 1890, 3. 102 ‘Terrible Domestic Tragedy,’ Portland Guardian, 10 Dec 1890, 3. 103 ‘Frightful Murder of a Family at Ballarat,’ Colac Herald, 12 Dec 1890, 4; ‘Terrible Domestic Tragedy,’ Portland Guardian, 10 Dec 1890, 3. 104 The American case of Phineas Gage, a railroad construction foreman who allegedly survived a traumatic brain injury in 1848 that was said to alter his personality entirely, led to theories of physical 100 101 114 and co-workers confirmed that they had seen Johnston suffer headaches, foam at the mouth and go about in ‘a fuss and a hurry’.105 Ultimately, these witnesses failed to convince the court. Justice Webb later reflected that ‘not one of these witnesses swore to the condition of insanity’, judging that ‘there was really no evidence to establish this defence’.106 Webb intimated that Johnston had killed his family with premeditation due to financial embarrassment, and upon the jury’s conviction, sentenced Johnston to death. Johnston’s trial inspired citizens of Ballarat to communicate their firm belief in the prisoner’s insanity. Letters to the editor reveal the Johnston case was publicly discussed in many places in Ballarat after trial.107 Citizens wrote to newspapers under pen names such as ‘Justice’, arguing that the killing of one’s own children was in itself proof of madness, and to proceed with execution would set dangerous precedent.108 Most vocal was a barrister named Thomas Drummond Wanliss, who wrote emphatic letters to newspapers in Melbourne and authored a petition for Johnston’s mercy.109 It is unknown whether Wanliss knew Johnston personally. In his petition he argued that Johnston’s accident ‘affected him mentally and physically’ and that the only reason that accident causing localised changes in the brain. See Andrew Lardner and John Paul Leach, ‘Phineas Gage and the beginnings of Neuropsychology,’ History of Neurology & Neuroscience 2, 3 (2002): 26. 105 R v Johnston (1891) VPRS 264 P0000/19; VPRS 1100 P0002/1. 106 Report from Justice Webb to the Governor of Victoria, R v Johnston (1891) VPRS P0000/19. 107 ‘I have heard this publicly discussed, in so many places lately…’ ‘To the editor,’ Ballarat Star, 15 Apr 1891, 4. 108 ‘Justice’ wrote that he was by no means an advocate for abolition of capital punishment. ‘To the editor,’ Argus, 8 May 1891, 7. 109 It is presumed the ‘T. D. Wanliss’ who wrote to the Weekly Times was Thomas Drummond Wanliss, who married in 1859. Births Deaths and Marriages Index, Victorian Gov, https://my.rio.bdm.vic.gov.au/efamilyhistory/5e4885b1a2c8b523490ec956/record/5c6552d14aba80ac3116f5cc?q=efamily&givenName=Tho mas%20Drummond&familyName=WANLISS. ‘The Temporary Respite of James Johnston,’ Weekly Times Melbourne 16 May 1891, 20. 115 the undersigned ‘could possibly imagine’ for the commission of the crime was that the prisoner ‘was for a time bereft of his senses’.110 Alongside these points, Wanliss emphasised that Johnston ‘was a devoted father and husband’ and appealed to the consciences of ‘influential public men’ in Melbourne. In the Argus, he cited the entry for ‘insanity’ in the Encyclopaedia Britannica, stating that only a few hours could intervene between sanity and insanity and likening Johnston’s condition to ‘acute transitory mania’.111 He dismissed Justice Webb as being ‘no more competent to pronounce an opinion than any intelligent layman’.112 However, unlike the sentiment of other citizens on the subject, Wanliss marvelled at ‘the cold and harsh indifference’ to medical opinion shown by his contemporaries, and advocated for the expertise of doctors in the matter. Efforts of public activism in Johnston’s case, enacted by both laymen and medical men, hinged on proof of his insanity. Due to the attention given to the trial by the press, a petition signed by forty-one qualified medical practitioners in Melbourne figured among the documents the Executive considered when deliberating the case in April.113 The doctors called for the appointment of a medical board to ascertain the mental condition of the prisoner prior to execution. After reviewing the evidence established at trial, the Executive Council decided there were no grounds for medical examination and fixed the date of the execution for May 11, 1891.114 What occurred on the night of May 10 is likely one of the most concerted efforts to save a prisoner in Victoria’s history. 110 Petition to the Governor, R v Johnston (1891) VPRS P0000/19. ‘The Case of James Johnston,’ Argus, 8 May 1891, 7. Wanliss cited the Encyclopaedia Britannica, vol. xiii, p. 100. 112 ‘The Case of James Johnston,’ Argus, 8 May 1891, 7. 113 R v Johnston (1891) VPRS 264 P000/19. 114 R v Johnston (1891) VPRS 264 P000/19. 111 116 Just before midnight, a man named Reverend Cairns (who, along with Wanliss, had also been vocal in advocating Johnston’s mercy) led two medical practitioners into Ballarat Gaol to Johnston’s cell. There, they certified the prisoner’s insanity and Cairns sent a telegram relaying the information to the Governor in Melbourne. A reply at two o’clock in the morning communicated that the Governor could not interfere with the Executive’s decision.115 Hearing word of this decision early the next morning, Wanliss sent a telegram to the Governor himself, reminding him that English law prohibited execution of prisoners legally pronounced insane.116 Having consulted with his advisors, Governor Hope sent telegrams to the sheriff and governor of Ballarat Gaol to stay the execution pending further medical inquiry under the Lunacy Act (s 6).117 These telegrams only arrived in the minutes before the execution was set to take place at ten o’clock, to the excitement of the crowds amassing outside the Ballarat Gaol.118 In the following days people spoke of the events ‘at every street corner and in every shop’.119 The temporary reprieve, and the way by which medical men had been illegally admitted to the gaol on the night of the 10th, roused indignation and concern in the city, both by those who feared the prospect of ordinary citizens taking the course of justice into their own hands, and those who, in criticising the Executive’s decision-making, recognised it as necessary.120 The interaction between public belief in madness and professional medical knowledge in relation to prisoners of the period could not be exemplified more clearly R v Johnston (1891) VPRS 264 P000/19; ‘The Action of the Governor,’ Argus, 12 May 1891, 5. ‘The Respite of James Johnston,’ Argus, 13 May 1891, 5. 117 ‘The Ballarat Tragedy,’ Argus, 12 May 1891, 5. 118 ‘Execution of Wilson- Johnston Respited at the Last Moment,’ Ballarat Star, 12 May 1891, 4. 119 ‘Last Monday’s Extraordinary Proceedings,’ Herald, 18 May 1891, 2. 120 ‘Reprieve of Johnston,’ Warragul Guardian, 15 May 1891, 3. Authorities laid blame on the sheriff who admitted the doctors: ‘The Sheriff and the Doctors,’ Horsham Times, 22 May 1891, 3. 115 116 117 than in the case of James Johnston. To the dismay of Cairns, Wanliss and a number of other men who firmly advocated for Johnston’s insanity, the medical board appointed by the Executive Council unanimously judged the prisoner to be sane.121 The names of the doctors, revealed once examinations had been conducted free of public pressure, show that those most specialised in mental illness in the colony had been appointed: Drs Richard Youl, James Jackson, John Fishbourne and James McCreery.122 The doctors examined Johnston for three hours, applying the methods of their professional practice: examinations of the tongue, tests for impaired speech and for evidence of paralysis in the lower limbs.123 Dr Youl pronounced Johnston ‘an accomplished malingerer’, a diagnosis the press keenly repeated in fresh headlines.124 It appeared that medical science had spoken, contradicting the public speculations of the prisoner’s insanity that had rested on his reputation alone. The public reaction to the decision of the medical board was one of general acceptance paired with justification for the widespread belief of Johnston’s insanity, and the post-trial activism on his behalf. Newspapers such as the Ballarat Star did not oppose the professional opinion of the medical board, but maintained that the public doubt as to Johnston’s mental stability had necessitated the examination and ensured just proceedings.125 Journalists criticised the Executive for not appointing a medical board prior to their decision to execute, whereby the drama of the case could have been ‘The Johnston Medical Board,’ Herald, 14 May 1891, 1. ‘The Johnston Medical Board,’ Herald, 14 May 1891, 1. 123 ‘The Johnston Medical Board,’ Herald, 14 May 1891, 1; Herald, 18 May 1891; ‘The Johnston Case,’ Camperdown Chronical, 16 May 1891, 2; ‘The Ballarat Murderer Johnston,’ Kyneton Observer, 16 May 1891, 3. 124 ‘The Temporary Respite of James Johnston, Pronounced Sane and a Malingerer,’ Weekly Times, 16 May 1891, 20. 125 The Ballarat Star, 13 May 1891, 2. 121 122 118 completely avoided.126 Others were not as convinced by the doctors’ decision. The Weekly Times argued that the public ‘presumption of insanity’ was that ‘that no man who was a tender husband and affectionate father could have so horribly taken the lives of his loved ones while in possession of his mental faculties.’127 The decision of the doctors was accounted for due to new information that had surfaced regarding Johnston, that ‘he was not in his family relations all that he was represented to be’. This ‘new information’ was nothing but press speculation that, if Johnston was sane in the commission of the crime, perhaps he had not been an upstanding husband or father after all. It followed that ‘the presumptive proof of insanity was very much weakened’.128 To the Ballarat Star, the supposed misrepresentation of Johnston’s family relations explained a verdict of sanity. The description of public assumption in legalistic terms of ‘proof’ demonstrates the efforts of non-professional men to assert their judgements as holding equal weight to those of legal and medical professionals. It is no surprise that these confident evaluations were self-termed as ‘presumptive’. The case of James Johnston contains the tropes of typical convicted femicide cases of the period, while presenting an exceptional level of community engagement due to belief in his madness. Johnston’s reputation, particularly his affection for his family, rendered his familicide inexplicable to an interested public who placed the crime as one of temporary insanity. For Johnston’s siblings and various members of the public, Johnston’s underlying insanity had existed since his physical injury almost a decade prior and on the night of the murder was triggered by impending financial stress. 126 The Ballarat Star, 13 May 1891, 2. ‘Notes of the Week’, Weekly Times, 16 May 1891, 17. 128 Weekly Times, 16 May 1891, 17. 127 119 The rare and ostensibly shocking nature of familicide, and the extent of Johnston’s popularity, inspired a concerted effort from laymen to ensure his certified insanity. Assumptions regarding protective paternal affection were integral to this public support. As a result, professional examination discredited the diagnosis of laymen and Johnston’s case ended with his execution on Monday 18 May, 1891.129 Like Gray, Anglin, Pridmore and other convicted male offenders of the period, indicators of respectable masculinity fostered support for Johnston and positioned him as having also suffered: from the stresses of paternal care, from a blank state of transitory madness, and from the horror, on returning to consciousness, at the realisation that he had killed those he loved. In relation to these men, positioned as community-oriented and deserving of a second chance at life, the case of Frederick Deeming stands in stark juxtaposition. ‘The criminal of the century’: Frederick Deeming The 1892 case of Frederick Bailey Deeming, alias Albert Williams, was perhaps the most notorious criminal trial to take place in Melbourne during the late-nineteenth century. Australians read of how police excavated a woman’s body from beneath a fireplace in a home in the inner-Eastern suburb of Windsor. The victim was identified as a young woman named Emily Mather and the suspected perpetrator as her husband, Frederick Deeming. In the following weeks, Australian police located Deeming and arrested him in Adelaide. He was transported by train to Melbourne, with crowds 129 ‘The Execution’, Ballarat Star, 19 May 1891, 4. 120 watching and jeering at various stations along the way.130 Authorities quickly pieced together Deeming’s antecedents, crimes and various alibis. Communication with police in Rainhill, England, where Deeming had lived before migration to Australia, prompted a search of his previous home. There the bodies of Deeming’s first wife and children were uncovered, there again buried beneath the fireplace. Back in Melbourne, men and women avidly followed news reports as police revealed more details regarding the crime and attempted to push their way into the packed Supreme Court trial. The swift administration of justice in Deeming’s case— from arrest in April 1892 and execution in May— was linked to the intense publicity of the case that ultimately determined the prisoner’s guilt before his trial had commenced. The particulars of Deeming’s crime read like a macabre Victorian crime novel, leading to the rapid publication of fictional accounts such as The Complete History of the Windsor Tragedy, The History of a Series of Great Crimes on Two Continents, and The Criminal of the Century, all published within a year of Deeming’s trial.131 A play based on Deeming’s crime named Wilful Murder! premiered in Melbourne during March and April 1892.132 This was a murder trial where the crescendo of public enthusiasm blurred truth into fiction. Of the 61 male offenders tried for murder between 1880 and 1914, Deeming has attracted the most historical scholarship. Research focusses heavily on the crime 130 Rachel Weaver, The Criminal of the Century (Melbourne: Australian Scholarly Publishing, 2006), 34. The Complete History of the Windsor Tragedy (Melbourne: Mason, Firth and M’Cutcheon, 1892); The Windsor and Rainhill Tragedies: The History of a Series of Great Crimes on Two Continents (Adelaide: Frearson’s, 1892); The Criminal of the Century (Sydney: Australian Mining Standards Office, 1892). 132 Barry O. Jones, 'Deeming, Frederick Bailey (1853–1892)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/deeming-frederick-bailey-5940/text10127, published first in hardcopy 1981, accessed online 27 September 2020. 131 121 literature, penal tourism and true crime archive that constitute Deeming’s legacy.133 Only Rachel Weaver’s Criminal of the Century has considered the question of Deeming’s insanity that determined his characterisation and guilt, and the interactions between doctors, legal actors and the public in attempting to answer it.134 The following analysis seeks to situate the public reaction to Deeming within the broader context of responses to male-perpetrated intimate partner homicide in the period. The inability of doctors to offer a conclusive diagnosis of the prisoner spelled problems for Deeming’s defence case. Drs Shields and Dick examined Deeming in gaol in the week preceding the trial, prompting Deeming’s defence lawyer Marshall Lyle to ask Justice Hodges for postponement pending the collection of further evidence of the prisoner’s temporary insanity. Between the 14th and the 27th of April, Deeming was examined by six different doctors.135 Dr Dick’s unorthodox method of examination involved asking the prisoner questions on morality, to which Deeming replied that rules of morality only suited the ‘better to-do class’, and that under certain circumstances, such as a woman infecting him with syphilis, murder would be justified.136 Dick’s report was not helpful to the defence: he believed Deeming was not insane, but that he had a ‘defective moral sense’, ‘an instinctive criminal’ whose standard of right and wrong was ‘different to what is general’.137 Rosalind Smith, ‘The case of Frederick Deeming: The true crime archive as publication event,’ Southerly 72, 2 (2012): 56-73; Diane Gardiner, ‘Bigamy, Theft and Murder: The tale of Frederick Bailey Deeming,’ Agora 42, 1 (2007): 20-23; Kathryn Ferguson, ‘You don’t know Jack,’ Journal of Australian Studies 28, 84 (2005): 53-62; J. S. O’Sullivan, A Most Unique Ruffian (Melbourne: Melbourne University Press, 1968). 134 Weaver, The Criminal of the Century. 135 Dr Shields, the prison medical officer, was present all six times. R v Williams (1892) VPRS 264, P0000/21. 136 Examination of Dr Dick, 14th April 1892, R v Williams (1892) VPRS 264, P0000/21. 137 Examination of Dr Dick, 14th April 1892, R v Williams (1892) VPRS 264, P0000/21. 133 122 The M’Naghtan rules required the defendant to not know right from wrong, not, as asserted in Deeming’s case, to have a different standard of right and wrong. Informed by Ellis Havelock’s criminal anthropology, this diagnosis did not aid the defence in establishing legal insanity.138 The doctors had not provided Marshall Lyle with the evidence he needed to prove the prisoner’s legal insanity. On April 27, the day the trial was set to commence, Lyle lodged another request for postponement pending further collection of medical evidence. On the denial of this request, Lyle shocked the city by withdrawing from the trial. Alfred Deakin, by that time an aspiring politician who returned to legal work as a result of the financial depression of 1892-3, replaced Lyle as defence counsel. 139 Though a substantial grouping of the public and many of the medical witnesses believed Deeming to be mentally deficient, the way this insanity was conceived continued to hinder the prisoner’s case. Intense public speculation saw the press attach a number of ambiguous diagnoses to Deeming, labels such as moral insanity, homicidal monomania and sex mania. Rachael Weaver aptly describes how the press ‘worked to affirm [Deeming’s] criminality by layering pathologies upon him’.140 Here was a man who had posed as various personalities: an Inspector of Army Regiments in Bombay, a wealthy Australian squatter and a nobleman named Baron Swanston. He showed no remorse at his inquest trial, but was reported to have smiled, smirked and leered at the female spectators, and at his trial for murder he directly addressed the court to explain his 138 Dick cited Havelock Ellis, an English intellectual of psychology and eugenics, in his official medical report, R v Williams (1892) VPRS 264, P0000/21. See Havelock Ellis, The Criminal (New York: Scribner and Welford, 1890), 17. 139 R v Williams (1892) VPRS 264, P0000/21. 140 Rachael Weaver, The Criminal of the Century, 73. 123 defective memory and impulse to lie.141 He had no family or community to vouch for his virtue. Here was a murder that appeared to have been planned and, as the Argus put it, was ‘very different to other murders’ due to not having been committed in the heat of domestic argument or spurred by passion for another woman.142 Deeming’s crime did not fit the typical femicide marked by jealousy or dispute, prompting contemporaries to conceptualise the crime and its perpetrator in different terms. Due to Deeming’s lack of social connection and odd behaviour, the press were convinced of his mental abnormality and reacted with mockery when doctors failed to provide any objective proof of this at trial.143 The public desired confirmation of Deeming’s cold-blooded criminal tendencies, yet conversely also wished doctors to establish the abnormal pathology of his mind. Doctors could not comply; to find Deeming legally insane would be to remove his responsibility for the crime—a factor that journalists seemed to forget. Both parties—journalists and professional doctors— spoke paradoxically of Deeming’s criminality by ascribing mental deficiency yet still according him full responsibility for his crimes. Unlike the ‘temporary insanity’ of men such as John Gray and James Johnston, Deeming’s madness was touted as the genetic markings of a criminal underclass. Both his trial jury and an enthusiastic public believed he should hang. Deeming’s case demonstrates the way that criminological theories of behaviour were applied to criminals who were placed outside the pale of respectability in the latenineteenth century. Gaining popularity in England and Western Europe, criminological 141 Weaver, The Criminal of the Century, 40-58; Argus, 11 April 1892, 6; Age, 6 April 1892, 5; Argus, 8 April 1892, 8; Age, 3 May 1892, 5-6; Australasian, 7 May 1892, 890; The History of Two Notable Crimes, 133-141. 142 Argus, 14 March 1892, 5. 143 Melbourne Punch, 5 May 1892, 274. 124 science sought to explain criminal behaviour through the biological and psychological categorisation of ‘the criminal’. Proponents of these theories such as Havelock Ellis and Cesare Lombroso posited that criminals could be identified and their crimes prevented through an understanding of their desires, physical features and biological impulses. In Australia, an interested press communicated criminological ideas to the public, but practicing criminologists remained few and the practice seldom mixed with the psychiatric profession.144 Criminology would rise more prominently in fields of psychology and penal administration in the 1920s and 1930s. 145 In the 1890s, doctors continued to make diagnoses based on a combination of environmental and hereditary factors. Only certain doctors, such as Dr Dick, incorporated criminological theory in relegating certain madmen to a criminal ‘class’ who were especially difficult to cure.146 Yet medical experts were not the only parties to pathologise criminal behaviour in this way. Catharine Coleborne reminds us that though medical experts sought, to some extent, to gain professional recognition in the courtroom, there was an equal reliance on the part of lawyers for doctors to explain crime.147 Indeed, Deeming’s abnormal pathology was not only used to explain his crime and the need for his removal from society, but in the only protest for his mercy. Marshall Lyle, Deeming’s initial defence counsel, took up the prisoner’s cause posttrial and appealed to qualities of ‘enlightenment’ and ‘civilisation’ among the members of the Executive Council. The duty of the law was not only the protection of women 144 This distinction is demonstrated well in an article for the British Medical Journal, where the author writes: ‘that the plea of ‘instinctive criminality’ would be to any avail in protecting the prisoner… no one could expect’. ‘The Case of Frederick Bailey Deeming,’ British Medical Journal 1 (1892), 974. 145 The Criminology Society of Australia was founded in November 1895. Mark Finnane, ‘The origins of criminology in Australia,’ Journal of Criminology 45, 2 (2012): 159. 146 Milton Lewis, Managing Madness: Psychiatry and Society in Australia 1788-1980 (Canberra: Australian Institute of Health, 1988), 51; R v Williams (1892) VPRS 264, P0000/21. 147 Coleborne, Reading Madness, 47-8. 125 and children from the criminal, Lyle argued, but ‘the protection of the Criminal from himself’.148 In criminological terms, Lyle outlined Deeming’s criminal instincts and the absence of higher intellectual faculties, concluding that to find him fully responsible for his crime reflected the outdated conservatism of the judiciary, and placed the conviction of the jury ‘in direct defiance of the truth and science of the century’.149 The Executive Council did not heed Lyle’s request to save the prisoner, but did consider the potential value of Deeming’s brain for examination after death. Correspondence to the Governor post-trial focussed largely on the question of dissection, with the Victorian Branch of the British Medical Association requesting examination of Deeming’s brain in the interests of modern science.150 No doubt under direction from Lyle, Deeming issued his own request that his mind be bequeathed to his solicitor and two doctors who he had come to know: Dr Springthorpe and Dr Fishbourne.151 Governor Loch refused this request, presumably to bury any evidence that could challenge the Executive’s decision with Deeming’s body.152 In doing so, Loch played his own role in the criminologically-influenced decisions that defined the prisoner. The public also adopted criminological thought, with journalists explicitly borrowing language from criminologists such as Lombroso to describe Deeming.153 However, the public mixed biomedical language with ideas of phrenology and biblical references, producing hybridized diagnoses with no contemporary scientific 148 Marshall Lyle to the Executive Council, 10 May 1892, 3, R v Williams (1892) VPRS 264, P0000/21. Marshall Lyle to the Executive Council, 7-8, R v Williams (1892) VPRS 264, P0000/21. 150 The Complete History of the Windsor Tragedy, 159; British Medical Association to the Crown Secretary, 12 May 1892, R v Williams (1892) VPRS 264, P0000/21. 151 Marshall Lyle to the Governor of Victoria, 17 May 1892, R v Williams (1892) VPRS 264, P0000/21. 152 Gardiner, ‘Bigamy, Theft and Murder,’ 22. 153 Weaver, Criminal of the Century, 70-71. 149 126 foundations.154 These opinions, communicated by journalists with self-proclaimed authority, were an attempt to understand the ‘otherness’ that Deeming presented. Mark Finnane argues that biological criminology ‘struggled to find root in Australian soil’ due to the aspirational egalitarianism of that society. This explains why few maleperpetrated murders were treated in the criminological terms as Deeming’s was: men such as James Johnston were colonial born or else colonial in mannerism, they operated productively and did not pose a threat within their community (only to those in their households). Their engagement with the colonial homosocial world through racing, gambling or appreciation of a drink at the pub, indicated their status within one or numerous masculine constructions. It is possible that male jurors, lawmakers and the general public could see something of themselves in these men. Deeming represented something other: an unpredictable figure who operated alone, with no fixed loyalty to country or community and ostensibly no place within colonial society.155 It follows that the Victorian public were quick to dehumanise Deeming. Though men such as James Johnston had also killed ‘defenseless (sic) women and children’, citizens suggested the different ways Deeming should be killed as punishment (for example inhaling chloroform or drowning), with the dual advocation of preserving his brain for examination, because ‘human fiends and monsters’ ought to experimented upon just as were ‘inoffensive animals’ such as ‘cats, dogs, cows and guinea pigs’.156 Some suggested that the court proceedings of the trial be bound with Deeming’s skin.157 The public took possession of Deeming’s body, echoed in the sentiment of his own 154 Weaver, The Criminal of the Century, 70-71. See Smith, ‘The Case of Frederick Deeming,’ 65. 156 ‘The Murderer Deeming,’ Coburg Leader, 25 May 1892, 4. 157 ‘Deeming’s Skin,’ Gippsland Farmers’ Journal 13 May 1892, 3. 155 127 solicitor in writing that through dissection ‘in this way, at least, the criminal may be of service to humanity.’158 Deeming was executed on 23 May 1892. His death mask remains a popular spectacle at Old Melbourne Gaol at the time of this writing. In an era striving for humanitarian care and rehabilitation for the mentally ill, those who stood outside the realm of colonial masculinities and showed no desire to operate within society nor to contribute to it, were deemed by law, medicine and the general public as impossible to rehabilitate and consigned to a biological, criminal class. There were comparatively few qualms about expunging these criminals from society through violent means. In cases such as these, public opposition to the death penalty fell silent. Deeming’s case remains an important contrast to the narratives that characterised the intimate partner and family homicides of the period. Brought together, these cases illustrate how mental illness could be constructed to suit social and legal biases. Sympathy for defendants remained contingent on dominant modes of masculinity and middle-class respectability. Conclusion This chapter has investigated the various ways legal actors, doctors and ordinary Victorians constructed mental illness in trials for male-perpetrated murders in the period. Intimate partner homicides constitute the extreme end of the spectrum of domestic violence, and in the nineteenth century these crimes were perpetrated within a culture of non-interference. Men killed wives or paramours where they perceived some slight or transgression of sexual boundaries. While lawmakers expressed concern 158 Marshall Lyle to the Governor, 17 May 1892, R v Williams (1892) VPRS 264, P0000/21. 128 regarding the violent abuse occurring in marital homes and suffragists railed against the issue in the press, legal structures such as the Divorce Act continued to reinforce harmfully high standards for abuse to be recognised. In the same vein, journalists, jurors and the general public found it difficult to disparage defendants in the courtroom. In doing so, the chapter has brought narratives of mental instability out from the periphery and placed those narratives as the central point of consideration. In fully appraising these trials, it is clear that late-nineteenth century psychiatry, social reform and community attitudes converged to agree upon a dominant narrative in cases of intimate partner homicides: that of ‘temporary insanity’. Psychiatrists played a limited role in forming these narratives, whereas for the public, ‘temporary insanity’ offered an accessible way to reconcile murders perpetrated by ostensibly respectable, upstanding male offenders on women they ‘loved’. In highlighting the different narrative put forward in the case of Frederick Deeming, it is apparent that ‘temporary insanity’ was often exclusively applied to men did not disrupt the status quo through prior offences, lack of community engagement and an unrecognisable masculine conduct. While the late nineteenth century is typically characterised, as it is in Chapter Two, as a period where medical insanity was increasingly ‘feminised’, examination of male perpetrated cases can challenge the notion of a clear binary when it came to serious crime. In the criminal courtroom, insanity, too, became a thoroughly gendered explanation for male crime. Just as judgments of puerperal insanity depended on a dominant mode of femininity and respectability, the narrative of ‘temporary insanity’ occupied the crossroads of hegemonic masculinities and bourgeois respectability. The key difference was that while insanity was linked the reproductive biology of female offenders, male ‘temporary insanity’ was a temporary blip in the life of an otherwise healthy and ordinary man who posed no further danger to society were he to be released. 129 It follows that there were fewer claims of insanity where women did not kill in the biological context of pregnancy, as Chapter Four will investigate. 130 Chapter Four ‘Before you kill us, I will kill you’: Insanity and questions of agency in female-perpetrated murders, 1880-1916 Few women in Victoria murdered in comparison to men, and even fewer were convicted. The 30 women convicted for capital crimes between 1880 and 1939 were found guilty of murder (30 percent), infanticide (37 percent), murder in the course of an abortion (27 percent) and arson (six percent). This data demonstrates how women killed for reasons different to men.1 The substantive literature on female offenders is appropriately concentrated around reproductive crime and the sexual politics of this era, given that most women committed murder in the distinctly gendered circumstances of desperation and financial hardship: namely infanticide as discussed in Chapter One, and the accidental death of female patients in the course of illegal abortions.2 However, murders outside of this paradigm present no clear pattern, and it is perhaps for this reason the historical scholarship on this type of murder is sparse. Women killed husbands, sisters and acquaintances, each case presenting an anomalous set of circumstances that do not relate to one another as clearly as do, for example, male murders of intimate partners. As Susanne Davies points out, ‘when women kill, they usually do so within a specific context’. See ‘Captives of their bodies’: Women, law and punishment, 1880s-1980s’ in Diane Kirkby, ed, Sex, Power and Justice: Historical Perspectives on law in Australia (Melbourne: Oxford University Press, 1995): 110. 2 Patricia Sumerling, ‘The Darker Side of Motherhood: Abortion and Infanticide in South Australia 1870-1910’ Journal of the Historical Society of South Australia no. 13 (1985): 111-27; Judith Allen, ‘Octavius Beale Reconsidered: Infanticide, Baby farming and Abortion in NSW 1880-1939’ in Sydney Labour History Group, eds., What Rough Beast? The State and Social Order in Australian History (Sydney: Allen & Unwin, 1982), 111-29; Kathy Laster, ‘Infanticide: A Litmus Test for Feminist Criminological Theory’ Australia and New Zealand Criminology 22 (1989): 155-66; Judith Allen, Sex and Secrets: Crimes Involving Australian Women since 1880 (Melbourne: Oxford University Press, 1990); Susanne Davies, ‘Captives of their own bodies: Women, law and punishment, 1880s-1980s’ in Sex, Power and Justice: Historical Perspectives on Law in Australia, ed. Diane Kirkby (Oxford: Oxford University Press, 1995), 99-115; Nicola Goc, Women, Infanticide and the Press 1822-1922: News Narratives from England and Australia (Surrey: Ashgate, 2013). 1 131 Despite a proliferation of quasi-psychological theories in the last decades of the nineteenth century that sought to categorise the female offender as inherently pathological, the trials for women who murdered presented a surprising lack of insanity claims.3 Of the eight women whose victims were neither infants nor abortion patients, three presented insanity as a defence at trial, and all were found guilty with only one receiving a recommendation to mercy.4 Post-trial, citizens did not petition for their clemency on the basis of insanity and with the exception of two cases, these women received no public support at all. Given the clamorous indignation of citizens in cases of convicted infanticide offenders or male spouse murderers, this chapter interrogates the silence in cases of women convicted of murder, and the reason why insanity was imputed for some offenders while being withheld for others. First, the chapter examines the historiography of women who killed partners. The discussion then contextualises the eight convicted cases within the broader trends of female offending throughout the period, before addressing the individual case studies. Re-purposing the history of female offenders The works that have critically analysed insanity claims in historical cases of female-perpetrated homicides are few and far between. The literature is mainly concerned with understanding why female offenders were treated more leniently than men, with analysis of the element of insanity confined to how judges and jurors historically negotiated criminal responsibility in female offenders. For example, scholars of nineteenth-century England and France argue that judges and jurors were unwilling to ascribe agency to murderesses and used the label of insanity as a 3 See for example Havelock Ellis, The Criminal (London: Walter Scott, 1890); Cesare Lombroso, The Female Offender (New York: D. Appleton and Co., 1899). 4 VPRS 1100 and VPRS 264. The eight trials of women convicted for murder (excluding infanticides and murders in the course of illegal operations) were R v Lucas (1880) VPRS 264 P0000/9; R v Silk (1884) VPRS 264 P0000/11; R v Mepham (1887) VPRS 264 P0000/12; R v O’Brien (1892) VPRS 264 P0000/21; R V Andersen (1894) VPRS 264 P0000/22; R v Needle (1894) VPRS 264 P0001/2; R v Sangal (1902) VPRS 264 P0001/4; R v Black (1916) VPRS 1100 P0002/5. 132 tool to remove women’s ‘capacity for anger, power and violence’.5 Roger Smith and Jill Ainsley similarly posit that there was a pervasive belief among judges and jurors that only a woman of disturbed mind could kill.6 In the context of France, Ruth Harris shows how bourgeois women who killed were similarly absolved of intent through the diagnosis of ‘hysteria’.7 In the Australian context, Kathy Laster, David Plater and Sue Milne dissect the workings of what has been termed the legal ‘chivalry’ meted out to female defendants in the form of lenient sentences. In doing so these works advance an argument similar to Smith’s, in that it was often women who presented as passive or overtly feminine who were afforded chivalrous treatment—potentially in the form of believed insanity claims—before the court.8 Laster complicates the chivalry theory by arguing that it was an ‘arbitrary’ process and shifted between governments and eras, using as an example the swing against female offenders and the resultant execution of three women in the 1890s.9 Outside of these few studies, scholarship on the colonial context has largely neglected to analyse insanity claims, if they are mentioned at all. The history of female offending more broadly goes some way in helping to explain the lack of critical discussion regarding their historical trials in Australia, particularly in relation to insanity defences. The history of women who kill has been produced in a different tradition to that of male offenders. A generation of feminist criminologists pushed for a women’s history Jill Newton Ainsley, "Some Mysterious Agency’: Women, Violent Crime and the Insanity Acquittal in the Victorian Courtroom Canadian Journal of History 35, 1 (April 2000): 40. 6 Roger Smith, Trial by Medicine: Insanity and responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981): 149-50; Ainsley, “Some Mysterious Agency,” 43, 48. 7 Ruth Harris, ‘Melodrama, hysteria and feminine crimes of passion in the fin de siecle’ History Workshop Journal no. 25 Spring (1988): 31-63. 8 Kathy Laster, ‘Arbitrary Chivalry: Women and Capital Punishment in Victoria, Australia 1842-1967,’ Women & Criminal Justice, vol. 6(1) (1994): 67-95; David Plater and Sue Milne, ‘All that's Good and Virtuous or Abandoned and Depraved in the Extreme?’ Capital Punishment and Mercy for Female Offenders in Colonial Australia, 1824 to 1865’, University of Tasmania Law Review 33, 1 (2014): 83-140. 9 Laster, ‘Arbitrary Chivalry’. 5 133 of crime in the 1970s and 1980s, seeking to highlight the difference in female lived experience that criminologists and lawmakers had neglected to take into account.10 Following Carol Smart’s foundational text Women, Crime and Criminology, feminist criminological works looked to historical sources to account for contemporary attitudes toward female criminals, and tested theories of female criminality against historical data.11 Interdisciplinary edited collections following in this tradition would often focus on women who murdered.12 While often productively deconstructing ideas of ‘femininity’, early studies were written with present feminist aims in mind and could fall short in their attention to historical contexts.13 Running parallel to this scholarly tradition is an enduring genre of microhistories that document the stories of Victoria’s convicted female murderers in a more sensationalist and uncritical form. While feminist criminology sought to explain the gendered circumstances driving women to crime, an older genre of quasi-historical literature relies on the construction of female killers as shocking aberrations of their sex, this portrayal being either sexualised and powerful or abhorrent and ‘monstrous’. James Holledge’s 1963 book Australia’s Wicked Dorie Klein, ‘The etiology of female crime: A review of the literature,’ Issues in Criminology 8 (1973): 3-30; Dorie Klein and June Kress, ‘Any woman’s blues: A critical overview of women, crime and the criminal justice system’; Crime and Social Justice 5 (1976): 34-49; Meda Chesney-Lind, ‘Chivalry re-examined: women and the criminal justice system,’ in Women, Crime and the Criminal Justice System, ed. L. H. Bowker (Massachusetts: Lexington, 1978); Susan Datesman and Frank Scarpitti, eds., Women, Crime and Justice (New York: Oxford University Press, 1980); Beverly Brown, ‘Women and crime: The dark figures of criminology,’ Economy and Society 15, 3 (1986): 355-402); Maureen Cain, ‘Realism, Feminism, Methodology and Law,’ International Journal for the Sociology of Law 14 (1986): 255-267; Loraine Gelsthorpe and Allison Morris, ‘Feminism and Criminology in Britain,’ The British Journal of Criminology 28, 2 ‘A History of British Criminology,’ (1988): 93-110. 11 Carol Smart, Women, Crime and Criminology: A Feminist Critique (London: Routledge and Kegan Paul, 1976); J. M. Beattie, ‘The Criminality of Women in Eighteenth Century England,’ Journal of Social History 8, (1975): 80-116; Jan Robinson, ‘Canterbury’s Rowdy Women: Whores, Madonnas and Female Criminality,’ Women’s Studies Journal, 1, 1 (1984), 6-25; Charlotte McDonald, ‘Crime and Punishment in New Zealand, 1840-1913: A Gendered History,’ New Zealand Journal of History 23, 1 (1989): 5-21; Laster, ‘Infanticide’; Lucia Zedner, ‘Women, Crime and Penal Responses: A Historical Account,’ Crime and Justice vol. 14 (1991): 307-362. 12 See Lindy Cameron and Ruth Wykes, eds., Women Who Kill: Chilling Portraits of Australia’s Worst Female Murderers (Melbourne: The Five Mile Press, 2010); Kerry Greenwood, ed., The Thing She Loves: Why Women Kill (Sydney: Allen & Unwin, 1996); Helen Birch, Moving Targets: Women, Murder and Representation (London: Virago Press, 1993). 13 There were, of course, works that proved exceptions to this rule in their attention to historical methodology such as Judith Allen’s Sex and Secrets: Crimes Involving Australian Women Since 1880 (Oxford: Oxford University Press, 1990) and Laster, ‘Arbitrary Chivalry’. 10 134 Women, which discusses several of the female offenders covered in this chapter, features a woman with a red beehive on the cover, salaciously unhooking her bra as men watch on.14 This literature is by no means defunct, with authors continuing to situate these works as historical contributions offering new historical revelations about the women convicted—usually centring on the women executed—in Victoria’s past.15 Interestingly, these works tend to suppress or diminish the extent to which insanity featured as a defence in the trials of female prisoners, presumably to preserve the portrayal of the ruthless killer and disallow the possibility for more nuanced hardships. As Kerry Greenwood outlined in 1996, female killers are often written and packaged to the public as various tropes: the Poisoning Wife, the Sadistic Bitch or the Vengeful Whore.16 This chapter will consider the peculiar construction of Martha Needle as ‘femme fatale’ in a following section, yet it is worth noting this vein of literature both as a way of understanding the majority of work focussing on the women convicted of murder in Victoria’s history, as well as the more recent trend of quantitative analysis in the Australian historiography. Recent scholarship examining female offenders has distanced itself from the sensationalist histories of Victoria’s most ‘notorious’ killers and in doing so, made the case for broader studies of female offending. In particular, Alana Piper and Victoria Nagy include offences other than murder in their longitudinal studies of female prisoners, in an effort to understand risk factors leading to incarceration, rates of recidivism and the personal James Holledge, Australia’s Wicked Woman (Melbourne, Horwitz Publications, 1963). Martha Needle has inspired a lot of this literature. See for example Brian Williams, Martha Needle: The Spellbinding Story of Australia’s Most Infamous Femme Fatale (Melbourne: New Holland, 2018); Nigel Cawthorne, Killer Women: Chilling, Dark and Gripping True Crime Stories of the Women Who Kill (London: Hachette, 2018); Paul B. Kidd, Australia’s Serial Killers (Melbourne: Macmillan, 2011); Samantha Battams, The Secret Art of Poisoning (Melbourne: Samantha Battams, 2019). Alex Pined does well to at least mention Needle’s history of mental instability and abusive childhood home. Alex Pined, The World’s Most Lethal Ladies (South Carolina: Shaharm Publications, 2015). 16 Kerry Greenwood, ‘The Blackest Female Depravity,’ in The Thing She Loves: Why Women Kill, ed. Kerry Greenwood (Sydney: Allen & Unwin, 1996), 123-134. 14 15 135 relationships between women who committed crime.17 In doing so, Piper and Nagy advocate for the interdisciplinary practice of ‘feminist historical criminology’, an approach that uses historical quantitative data (e.g. their sample consists of 6,042 female offenders imprisoned in Victoria between 1860-1920) to contribute to criminological knowledge in the present.18 In a reversal of the earlier scholarship, these historians are now positioning their field as a useful resource to contemporary feminist criminology. While these studies greatly contribute to our knowledge of female offending in the past, the few cases of convicted female murderers are easily subsumed in these macro histories and left to the quasi-historical profiles mentioned in the previous paragraph. In short, female offenders most often feature in historiography for a particular purpose, whether it be to advocate for a feminist criminological framework, to shock or entertain readers, or to advocate for the utility of history to contemporary criminological practice. As the works examining these women have invariably omitted or highlighted specific elements of their cases, rarely have they been critically examined as historical subjects in their own right. Women who kill, according to this literature, have either been responding to their specifically gendered life situations or acting as cold and cruel detractors of their sex. Jill Julius Matthews’ words are applicable here: ‘the jigsaw puzzle is pre-determined, the pieces cut large and colourful—it is simply a matter of slotting them together and finding which of the limited range Alana Piper and Victoria Nagy, ‘Imprisonment of Female Urban and Rural Offenders in Victoria, 18601920,’ The International Journal for Crime, Justice and Social Democracy 8, 1 (2019): 100-115; Alana Piper and Victoria Nagy, ‘Risk Factors and Pathways to Imprisonment among Incarcerated Women in Victoria: 18601920,’ Journal of Australian Studies 42, 3 (2018): 268-284; Alana Piper and Victoria Nagy, ‘Versatile Offending: Criminal Careers of Female Prisoners in Australia, 1860-1920,’ Journal of Interdisciplinary History 48, 2 (2017): 187-210. 18 Piper and Nagy, ‘Risk Factors and Pathways’, 284. For more on the application of feminist criminology and history, see Lucia Zedner, ‘Women, Crime and Penal Responses: A Historical Account,’ Crime and Justice 14 (1991): 307-362; Mary Bosworth, ‘Confining femininity: A history of gender, power and imprisonment,’ Theoretical Criminology 4, 3 (2000): 265-284; Mary Bosworth, ‘The Past as a Foreign Country? Some Methodological Implications of Doing Historical Criminology,’ British Journal of Criminology 41, 3 (2001): 431-442. 17 136 of pictures of women this one actually constitutes.’19 The pictures of women who kill are too often ‘cut large and colourful’, with no opportunity for intricate shades or complexities.20 This chapter aims to restore some historical complexity to the cases of women convicted for murder in Victoria between 1880 and 1939, advocating for microanalysis to accompany the contemporary macro histories being undertaken. In order to better understand the connections between female offenders, insanity claims and capital punishment, the field requires in-depth analysis of these insanity claims, as well as expansion upon Laster’s theory of ‘arbitrary chivalry’. This chapter will investigate how claims of insanity surfaced in trials for female-perpetrated homicide or post-trial in public advocacy, as this had bearing on pertinent historiographical questions such as the perception of offenders as sexed beings, the willingness to ascribe criminal responsibility to women who killed, and the reason for the relative silence compared with the public support for infanticide offenders. Patterns in sentencing: Acquittals and Convictions The eight women convicted of murder in Victoria between 1880 and 1939 form a puzzling constellation of cases. Their convictions fall between the years 1880 and 1916, with no woman convicted for murder between 1917 and 1939.21 Victoria Nagy suggests that in rural communities during the late-nineteenth century, there may have been local pressure on police not to charge women for murder, or on juries to convict women on lesser charges.22 In the period, thirty (approximately 14 percent) of the 215 convicted offenders were women, and of Jill Julius Matthews, ‘Ballroom Tragedy, Court Melodrama: The Case of Audrey Jacob,’ in Why Women Kill, ed. Kerry Greenwood (St Leonards: Allen & Unwin, 1996): 30-43. 20 For an overview of the ‘good/bad’ binary of women portrayed in crime history, see Rachel Franks, ‘A criminal record: Women and Australian true crime stories,’ piece for the Conversation published 7 Nov 2017, accessed online 20 June 2019. 21 PROV VPRS 264, VPRS 1100. 22 Victoria Nagy, ‘Homicide in Victoria: Female Perpetrators of Murder and Manslaughter, 1860-1920,’ Journal of Interdisciplinary History, forthcoming. 19 137 these, just three women were executed.23 A wider sample of 1,212 convictions including sentences other than death reveals that it was common for female offenders to receive convictions for the lesser offence of manslaughter and serve shorter terms of imprisonment as a result.24 An investigation of how insanity surfaced in acquittal or lesser-charge convictions is appropriate if we are to fruitfully discuss the eight convicted cases in following sections. The number of women charged for murder not including infants and abortion fatalities remains low. Excluding the eight cases convicted of the capital charge of murder, roughly only nine other women were charged with murder (non-infanticide, non-abortion) in the period.25 These cases confirm that overall, women were not charged with murder as frequently, and could suggest that they did not kill as often as men during this period.26 The nine non-convicted cases saw seven women found insane and detained in a lunatic asylum at the Governor’s pleasure, one woman found guilty on a lesser charge of manslaughter and imprisoned for ten years with hard labour, and one acquitted outright.27 The seven women deemed insane present a distinctly different set of narratives to those found in Victoria’s convicted cases; these were not instances of political advocacy or benevolent intervention on behalf of a woman who had already received a death sentence. Nor were they cases where judges employed insanity as a token of chivalry as historians have argued, and as was often the case in infanticide trials. This compared to forty executions of the ninety-one men convicted in the same period. In Victoria’s history, five women were executed in total. 24 Only 22 of 219 capital trials (roughly 10 percent) in the period were convicted on the full (capital) charge. The rest were convicted on a lesser offence (usually manslaughter), acquitted, detained at the Governor’s pleasure or the trial was abandoned (nolle prosequi). Prosecution project data 2019. 25 The data for female offenders remains incomplete. Prosecution project 2019. 26 However, my findings contradict those of Nagy’s in ‘Homicide in Victoria’, suggesting discrepancies between the Supreme Court data and the Female Prison Register Data, as well as Mukherjee’s Criminal Statistics. S. K. Mukherjee, Source book of Australian Criminal and Social Statistics 1804-1988 (Canberra: Australian Institute of Criminology, 1988). 27 These are the cases of R v Hampton (1886), R v Whitford (1890), R v Walsh (1897), R v McCluskey (1910), R v Hillard (1929) and R v Hayes (1939). R v Hampton saw four defendants tried. See the Central Register for Male and Female Prisoners (1855-1947) PROV VPRS 515/516. 23 138 Where women presented clear symptoms that were associated with lunacy at the time, jurors and doctors could ensure the case did not proceed to trial and the defendants were remanded to one of Victoria’s asylums as a criminal lunatic. In the case of Catherine Whitford (1890), the inquest jury deemed the case one of wilful murder, yet doctors Edwin Hinchcliffe and John Eadie examined the prisoner in gaol prior to her Supreme Court trial and contacted the law department regarding her insanity.28 Helping Whitford’s case was her weakened state at the inquest (she was carried in on an ‘invalid’s chair’), evidence of a previous bout of sunstroke, and her apparent miscomprehension of what had occurred.29 After killing her husband with an axe, she had calmly gone to sleep and refused to talk to police or doctors when they arrived at the scene.30 Similarly, Bridget Walsh’s alleged delusions regarding her children persuaded jurors of her insanity when she poisoned them with strychnine in 1897. She was transferred to Yarra Bend lunatic asylum where she was kept in strict custody.31 The NGRI cases often involved inexplicable acts of violence directed at blood relations or spouses. Three sisters named Annie, Eleanor and Mary Hampton held their youngest sibling, nine-year-old Ethel, while their mother cut her throat with a razor in 1886. The family doctor explained in court that this act was the culmination of a shared delusion among the women in the house, and on that evening, they feared their impending deaths by an invisible enemy group.32 Following Ethel’s murder the women had endeavoured to cut their wrists and commit group suicide. The court heard evidence of Elizabeth Hampton’s eccentric behaviour and the history of mental illness in the family, with one of her sons residing in Yarra Bend lunatic asylum and her sister dying in a lunatic asylum in Tasmania.33 In a similarly anomalous case, ‘Sandhurst,’ Argus, 29 Oct 1890, 6. ‘The Sandhurst Tragedy,’ Argus, 6 Oct 1890, 6. 30 ‘Terrible Tragedy,’ Kerang Times, 30 Sep 1890, 2. 31 Bridget Walsh, VPRS 516 P0002/12. 32 ‘The Coburg Tragedy,’ Advocate, 6 Feb 1886, 18; ‘The Coburg Tragedy’ Leader, 27 March 1886, 30. 33 ‘The Coburg Tragedy,’ Ballarat Star, 26 Mar 1886, 3. 28 29 139 Camelia McCluskey chased after her children with a tomahawk in their Bendigo home in 1910, murdering all three of them.34 McCluskey’s father testified to her falling from a horse at the age of two, four and eighteen, hitting her head and losing consciousness each time.35 Dr Charles Gaffney used the evidence from her childhood to bolster the assertion that McCluskey was in a ‘blind fury’ at the time of the murders, ‘absolutely unconscious of the moral or legal aspect of [the act]’.36 In NGRI cases, defendants often appeared weakened and enfeebled in court, eccentric in their failure to wear a hat, or in the way that they spoke.37 Both the Hamptons and McCluskey attempted to commit suicide after the act, another factor that may have contributed to their NGRI verdicts.38 These cases inform the following reading of the eight convicted cases of female offenders between 1880 and 1939. In contrast, no doubts were raised regarding fitness to plead prior to the convicted trials, and for various reasons their respective insanity defences failed. The cases of Martha Needle and Maria Black contained evidence of insanity similar to the Hampton and McCluskey trials, yet both women were convicted. Time and awareness were valuable factors for defendants in these trials, as the women showed too much premeditation and displayed too much acknowledgement of what they had done. A woman acting in selfdefence did not confront the feminine ideal as much as one who may have planned to murder. In convicted cases where these women fast became publicly viewed as ‘monsters’, insanity very much became a defence of last resort when they had no other defence to rely upon. 34 R v McCluskey (1910) VPRS 264 P000/27. Her husband had caught her wandering at night without shoes on, an act that cropped up again and again in female admission certificates to lunatic asylums in the period. Bendigo Independent, 15 Aug 1910, 3; Georgina Rychner, ‘The Worst Woman in Melbourne’: Women, Insanity and the Asylum in Colonial Victoria, 1890-1900,’ (Honours thesis, Monash University, 2016), 45-48. 35 ‘Bendigo Tragedy,’ Argus, 16 Aug 1910, 6. 36 ‘The Don Street Tragedy,’ Bendigo Independent, 5 Oct 1910, 3. 37 The press reported how McCluskey’s slender frame ‘trembled like a leaf’, her hair ‘dishevelled’ in court. Bendigo Advertiser, 9 Aug 1910, 3; Bendigo Advertiser, 9 Aug 1910, 5. ‘The Hampton Tragedy,’ Herald, 25 Mar 1886, 3. 38 ‘The Coburg Tragedy,’ Advocate, 6 Feb 1886, 18; ‘The Mother’s Confession,’ Bendigo Advertiser, 8 Aug 1910, 7. 140 However, the public rarely petitioned on the basis of insanity or offered any post-trial advocacy at all. Against the resounding cry of madness echoing off the pages of infanticide cases, it is worth examining the silences in cases for women who killed adults. Listening to the silences: Complicating the ‘unfeminine’ The women who were condemned in the public eye and did not receive lenient sentences presented cases that disrupted the idea of a woman’s place in nineteenth-century Victoria. Elizabeth Scott, the first woman executed in the colony in 1863, conspired with two men (one rumoured to be her lover) to kill her husband. The last woman executed in Victoria in 1953, Jean Lee, conspired a robbery with two men that resulted in murder. Historians have noted the symmetry of these cases, and it seems that they cast a mould for all the women condemned in between. As Kathy Laster argues, the women executed in Victoria were perceived as ‘monster women’, ‘irredeemable’ and ‘callous’.39 Indeed, the offenders convicted for murder in the period were generally working-class women viewed to be of ‘ill repute’ who took to drink and used bad language. Where the young women who killed their infants were often rendered blameless due to a confusion of mind, the eight women convicted of murder between 1880 and 1916 did not receive the same speculation in regard to their mental states. Laster, Plater and Milne argue that an inability on the part of defendants to present as appropriately ‘feminine’ rendered these women beyond redemption in the eyes of the public.40 However, not all convicted offenders were publicly condemned as ‘monsters’ or described ‘unfeminine’. A closer examination of these cases complicates this feminine-mad/unfeminine-sane binary somewhat and suggests that perhaps more factors were at play. 39 40 Laster, ‘Arbitrary Chivalry’, 70. Laster, ‘Arbitrary Chivalry’; Plater and Milne, ‘All that’s good and virtuous’. 141 Even where offenders in this period were described as shockingly callous, there prevailed a strong societal belief that it was morally wrong to hang women, as women were the givers of life.41 Bridget Mepham’s case occurred prior to the spate of female executions in the 1890s, and as ‘unwomanly’ as her actions may have been, it was her body that saved her from the noose.42 Mepham’s violent temper was tried when her sister, Ann Callow, reneged on a signed agreement to sell Mepham a piece of land in Wangaratta, and Mepham bludgeoned her sister to death as a result. ‘A clearer case of premeditated murder, savagely carried out, never came before a court and a jury’ a local newspaper printed after her trial, followed by a substantial qualification: A woman may unsex herself, morally speaking, by vice and by crime, but she cannot rid herself of the woman’s mould in which God originally cast her. If not for her own sake, still for the sake of the form that womanhood of which she cannot divest herself, her body should be spared this last indignity.43 The article explained that the female form, ‘sacred to all men’, should never be ‘defiled’ by the hangman. Perhaps concerned members of the public did not feel the need to rally efforts for a reprieve in the case of women such as Mepham in the 1880s, given that the execution of a woman was considered both a sacrilegious act and an unfavourable political decision. In the same vein, alleged pregnancy could also spare an offender from the noose, as the case of Selina Sangal in 1902 demonstrates.44 Citizens may not have felt the need to emphasise a disordered mind where the female body could secure a commuted sentence, and where the crime did not strike a personal chord with colonial women as the many cases of infanticide did. This public complacency would change in the 1890s when Governors Houptoun and Brassey authorised See Laster, ‘Arbitrary Chivalry’; Plater and Milne, ‘All that’s good and virtuous’. Bridget Mepham murdered her sister Ann after Ann reneged on a signed contract to transfer a piece of land into Bridget’s name. Mepham also had a number of prior offences including assault and actual bodily harm upon her daughter and fines for obscene language and being drunk and disorderly. R v Mepham (1887) VPRS 264 P0000/12. 43 ‘The North Wangaratta Murder,’ Ovens and Murray Advertiser, 10 Sep 1887, 2. 44 R v Sangal (1902) VPRS 264 P0001/4; VPRS 1100 P0002/3. 41 42 142 the execution of three women, and it is from the mid-1890s onwards that insanity claims surfaced in every convicted case. In addition, given that suffragists and affiliated societies orchestrated the most coordinated efforts for advocacy in trials for female offenders in the 1880s and 1890s, their silence in trials for murder warrants some investigation. Mary Ann Silk, an Irish woman of fifty, was tried for the murder of her husband in 1884. Despite drinking with her husband from time to time, neighbours described Silk as ‘very agreeable’ and pleasant to live with. 45 Silk and her husband Jacob had been married for sixteen years and had two children, one who had passed away and a thirteen year old girl named after her mother. Silk did not appear to have the rough nature of Bridget Mepham, nor did she attract the ‘monster’ label post-trial. Silk was tried in 1884, the same year Rosanna Plummer received tens of thousands of signatures and a free pardon for the murder of her infant.46 Both women were from rural Victoria. Yet it is curious, given the circumstances of her case, that suffragist groups and benevolent ladies remained silent. Silk murdered in a context that many women may have feared or been familiar with. It was not unusual for Mary Silk’s husband to return home drunk from the pub in the evening, yet the 28th of September 1884 was different. Jacob Silk had antagonised an acquaintance named Ted Francome, looking for a fight, and when Francome struck him, Silk headed home to fetch his gun in order to kill the man. At home Mary begged him not to go, and when he asked Mary for a drink, and she poured him some gin. He demanded whiskey, so she sent her thirteen-year-old daughter (also named Mary) to the pub to buy a bottle. Jacob then picked up the gun, pointing it at his wife and drawing the trigger. The gun didn’t go off as there was no cap on it. He reached into his pocket to find a cap and said, ‘I will shoot you 45 46 ‘The Dreadful Tragedy at Morrisons,’ Mount Alexander Mail, 29 Sep 1883, 2. R v Plummer (1884) VPRS 264 P0001/1. 143 dead, and shoot her too when she comes back’. Mary hurried to the tool house and picked up an adze. She gave Jacob a blow to the forehead and he fell on his back. ‘Before you kill us, I will kill you if I can’, she said. She then gave him seven more blows, explaining later that ‘I struck him everywhere about the head, as I thought he would get up and kill us both.’47 At trial, the details of Silk’s domestic situation touched on several causes suffrage and social reform movements were then trying to address. It was revealed that on a trip to Geelong months earlier, Jacob had molested and possibly raped their daughter, who had told her mother on their return.48 This was submitted at trial as a possible motive for the killing. The court also heard of how one night some months before the trial Jacob had, in a state of intoxication, chased wife and daughter through the house with a gun threatening to shoot them. The women had escaped to a nearby neighbour and hidden there for the evening.49 In a decade where suffragists such as Louisa Lawson and female temperance campaigners were highlighting the brutality that could be inflicted upon wife and daughter within the home, and the central role alcohol played in this, why then was Silk’s case not used as an advantageous example alongside Plummer’s?50 Why did benevolent middle-class women in Melbourne write tirelessly of Plummer’s insanity to secure her reprieve, yet offered no speculation of madness in support of Silk? It is possible that, in moving beyond a solely gendered explanation of support for female offenders, the factor of class needs to be taken into account. Just as the label of ‘respectability’ affected public advocacy for reputable domestic servants who killed infants 47 Statement of Mary Ann Silk, read at Inquest and printed in the Mt Alexander Mail, 2 Oct 1883, 2. Testimony of Mary Ann Silk Jr., R v Silk (1884) VPRS 264 P0000/11. 49 Judge’s notes, R v Silk (1884). 50 See Olive Lawson, The First Voice of Australian Feminism: Excerpts from Louisa Lawson’s The Dawn 18881895 (Sydney: Simon & Schuster, 1990); Marilyn Lake, ‘Historical reconsiderations IV: The Politics of Respectability: Identifying the masculinist context,’ Australian Historical Studies 22, 86 (1986): 116-131; Judith Allen, ‘Mundane’ Men: Historians, masculinity and masculinism,’ Australian Historical Studies 22, 89 (1987): 617-628. 48 144 and upstanding community figures who killed their wives, class has been overlooked in cases for women convicted of murder, perhaps because their cases are approached with gender solely in mind. While Silk and her husband were ‘agreeable’ to their neighbours, some witnesses qualified that they were ‘agreeable when sober’.51 In addition, the delay in Silk’s confrontation of her husband regarding the sexual assault of their daughter may have prompted speculation and stigma from the public. Though still a relatively understudied area in the history of colonial Australia, Yorick Smaal’s research into incest in Queensland reveals the increasing Government concern regarding the not uncommon practice of children ‘ill-treated’ in the family home.52 An 1890s Victorian case, while also possibly revealing a racial bias due to the Chinese family involved, demonstrates how a charge of child sexual abuse within the family home could quickly lead to conclusions regarding the ‘depraved’ nature of the family as a whole.53 In that case, Justice Holroyd implied promiscuity on the part of the young victim.54 It is possible that the incest revealed at Silk’s trial cast aspersions on the family regardless of Jacob’s misconduct, barring Silk from the efforts channelled into Plummer’s reprieve campaign. There may have been a politics of respectability at play in the cases suffragists and campaigners chose to cast into the spotlight in advance of their causes. Young women who committed infanticide could more easily be rendered ‘helpless’ and ‘naïve’, a characterisation more difficult for older women who had been married to their victims for twenty years. Silk’s case was a risky one to cast before the public eye in an advancement of suffragist aims. It is also worth considering the roles of age and illiteracy in these cases. Silk could not write herself ‘The Dreadful Tragedy at Morrisons,’ Mount Alexander Mail, 29 Sep 1883, 2. Yorick Smaal, ‘Keeping it in the family: Prosecuting incest in colonial Queensland,’ Journal of Australian Studies 37, 3 (2013): 317. 53 R v Lim (1896) VPRS 264 P0000/24; VPRS 1100 P0002/2. 54 Judge’s notes, R v Lim (1896) VPRS 264 P0000. 51 52 145 into the narrative as young infanticide defendants could.55 She could not write to the Governor herself pleading for mercy, nor could she write to benevolent societies in Melbourne for help. In addition, a politics of ‘maternalism’ among the wealthy women of South Yarra and Toorak begs investigation in cases such as Plummer’s, a charitable exercise denied to older offenders such as Silk. While women’s welfare lay at the heart of the large movements for female prisoners, offenders needed to be able to attract the patronage of wealthy campaigners in order to affect post-trial clemency through claims of insanity, as the following two cases will illustrate. Deconstructing the ‘femme fatale’: Historicising Martha Needle While some scholars envision the nineteenth-century female offender as subject to patriarchal legal processes, robbed of agency and aggression through use of the insanity defence, popular histories stray in the opposite direction in presenting the female perpetrator as a deliberate killer possessing boundless agency and little fallibility. This construction of the nineteenth-century female killer is produced in a number of ways. Authors read the sensational historical press coverage of trials labelling the perpetrator’s crimes as ‘cool and deliberate’, and the perpetrator herself as a ‘monster’, and uncritically place that construction onto their subjects as well.56 This can occur where authors simply try to narrativize the criminal trials for their readers, and the lack of analytical ‘voice’ prevents a critical reading of the historical context.57 In other cases, authors deliberately position historical female killers within the fictional trope of the femme fatale, either to shock readers, or in celebration of women who seemingly defied the gender 55 R v Silk (1884) VPRS 264 P0000/11. See for example Advertiser (SA) 28 Sep 1894, 4; ‘Execution of Martha Needle,’ Clarence and Richmond Examiner 5. 57 See Kerry Greenwood, ‘The Blackest Female Depravity’ in The Thing She Loves: Why Women Kill, ed. Kerry Greenwood (St. Leonards: Allen & Unwin, 1996): 55-72; Michael Cannon, The Woman as Murderer: Five who paid with their lives (Morning: Australia Publishing Company, 1994), 94-126; Kay Saunders, Deadly Australian Women: Stories of the women who broke society’s greatest taboo (Melbourne: Harper Collins, 2013), 213-222. 56 146 constraints of their time.58 Martha Needle has inspired a number of texts in Australian literature and a critical discussion of how she has been represented is important if we are to appraise the relationship between gender, agency and insanity claims not only in historical cases but in public memory. The two-dimensional portrayal of Needle demonstrates the binary that persists within the literature that portrays offenders as either ‘mad’ or ‘bad’.59 Needle could not be both insane and devious, for to combine them would be a disappointingly complex read. Authors who opt for the latter endow Needle with all the flair of a classic femme fatale. A changing cultural trope largely defined by the film noir genre of the 1940s and 1950s, but with a long textual history outside it, the femme fatale is the woman who is dangerous not in spite of but as part of her femininity, being ‘sexually powerful’.60 ‘A slim, curly-haired beauty’ James Holledge’s account reads, Martha Needle was ‘a heartless Borgia who could kill five times without a flicker of emotion’.61 Brian Williams’ biography is littered with similar allusions: Needle was ‘attractive yet cunning’, ‘seductive and manipulative’.62 In accounting for how doctors supported her medical history of fits, Williams suggests she ‘seduc[ed] naïve members of the medical profession into her trap’.63 As the ‘Black Widow’, Needle reads as a fascinating outlier of her gender and places her perfectly within the genre of true crime fiction.64 She is included 58 Saunders, Deadly Australian Women, 9-11. On the ‘mad’ or ‘bad’ question in academic scholarship, see K. O’Donovan, ‘The Medicalisation of Infanticide’ Criminal Law Review (1984): 264; Ann Jones, Women Who Kill (New York, Fawcett Columbine, 1982), 51; Zedner, ‘Women, Crime and Penal Responses’, 307; Kathy Laster, 'Infanticide: A Litmus Test for Feminist Criminological Theory' Australia and New Zealand Journal of Criminology 22 (Sep 1989): 158; Saunders, Deadly Australian Women, 5. 60 Helen Hanson and Catherine O’Rawe, eds., The Femme Fatale: Images, Histories, Contexts (London: Palgrave Macmillan, 2010), 2. See also Heather L. Braun, The Rise and Fall of the Femme Fatale in British Literature, 1790-1910: From Gothic Novel to Vampire Tale (New Jersey: Farleigh Dickinson University Press, 2012). 61 Holledge, Australia’s Wicked Women, 111. 62 Williams, Martha Needle, 13. 63 Williams, Martha Needle, 15. 64 Williams categorises Needle as a ‘Black Widow’, a trope that has surfaced in the study of women and murder. Williams, Martha Needle, 15; Michael Kelleher and C. L. Kelleher, Murder Most Rare: The Female Serial Killer (Connecticut: Dell, 1998); Peter Vronsky, Serial Female Killers: How and Why Women Become Monsters (New York: Berkley Books, 2007). 59 147 in volumes such as Australia’s Most Evil Women and Australia’s Serial Killers. 65 In these works she serves to both shock and titillate. Conversely, other titles produced for a public audience are certain of Needle’s mental instability. Describing her as a ‘suburban femme fatale’, Kay Saunders also characterises Needle as a ‘psychopathic, ruthless mass murderer’ who killed her ex-husband and three children.66 For Saunders, Needle’s psychopathic nature is self-evident from her abhorrent act, carried out ‘all for financial gain’.67 Conversely, Michael Cannon’s analysis depicts Needle as a victim of epilepsy who should not have been executed: ….without doubt she was certifiably insane—stark staring mad—but because she did not rave or froth at the mouth, she was executed in what could only be described as a travesty of justice.68 Mental instability was certainly plausible in Needle’s case, yet Michael Cannon goes further than speculation to assertion of fact via retrospective diagnosis, that is, applying a medical diagnosis to a historical actor. While there are scholarly arguments for the validity of retrospective diagnosis in historical studies, this practice involves rigorous research and evaluation of medical sources, attention to changing historical contexts and shifting understandings of symptoms and diseases.69 The discussion of mental instability in Needle’s case requires more rigorous analysis and a balanced evaluation of the primary evidence. How do these constructions shape our understanding of Martha Needle, and why does it matter? That scholars who have read the easily-accessible case material put forward simple characterisations of Needle is a cause for reflection. Certainly there is a popular demand for Paul B. Kidd, Australia’s Most Evil Women (Melbourne: Five Mile Press, 2013); Kidd, Australia’s Serial Killers. 66 Saunders, Deadly Australian Women, 213, 218. 67 Saunders, Deadly Australian Women, 213. 68 Cannon, The Woman as Murderer, 94. 69 See Piers D. Mitchell, ‘Retrospective diagnosis and the use of historical texts for investigating disease in the past,’ International Journal of Paleopathology 1 (2011): 81-88; Osamu Muramoto, ‘Retrospective diagnosis of a famous historical figure: ontological, epistemic, and ethical considerations,’ Philosophy, Ethics and Humanities in Medicine 9, 10 (2014): 1-15. 65 148 historical true crime that adheres to a narrative genre, and a tendency on the part of scholars to shy away from complexity that the public won’t take to.70 In the texts that create her memory, Needle is imagined as femme fatale or epileptic patient, of which there is no evidence to support conclusively either way. The omission or elaboration hinges on her insanity defence, which in the seductress narrative is heavily suppressed, or in the patient narrative endowed with more authority than is appropriate. The high-profile nature of execution cases certainly explains why writers have been drawn to Needle rather than women such as Cecilie Andersen, who arguably embodied traits of the femme fatale trope in more overt ways. Another explanation is the blurring of history with elements of fiction. In diluting Needle’s case from the complexity and detail contained in the archives, her story is written in narrative form and the ambiguities surrounding her as a person filled in to create an attractive or pitiful character. While the slogan ‘well behaved women rarely make history’ has become a catch-cry for modern feminist subversion, the empowerment of femmes fatales can be unleashed more productively through contemporary fiction.71 While entertaining for readers, the lack of critical scholarship on Needle’s case is a detriment to the history of female offenders. She is a piece ‘cut large and colourful’, to return to Mathews’ phrasing, with no scope for complexity. Such representations not only do a disservice to historical treatment of female offenders but can skew public understanding of contemporary female offenders. A significant number of women in Australian prisons today are themselves victims of sexual abuse, domestic abuse and financial hardship.72 70 Ian Punnett presents interesting findings on the comfort the narrative form of true crime stories provides to readers/viewers/listeners. Punnett, ‘Toward a Theory of True Crime: Forms and Functions of Nonfiction Murder Narratives,’ (PhD dissertation, Arizona State University, 2017). 71 Quote originated in Laurel Thatcher Ulrich, “Vertuous women found’: New England ministerial literature, 1668-1735,’ American Quarterly 28, 1 (1976): 20-40, expanded upon in Ulrich, Well-behaved Women Seldom Make History (New York: Vintage Books, 2008). See Sue Turnbull, ‘“A dame with a gun is like a guy with a knitting needle”: Women and crime fiction,’ in The Thing She Loves: Why Women Kill, ed. Kerry Greenwood (Sydney: Allen & Unwin, 1996): 26-30. 72 A Sisters Inside 2016 report estimates that 85 percent of female prisoners are victims of sexual or domestic abuse, and 80 percent state their offending is directly related to their victimisation. Debbie Kilroy, ‘Women in 149 More recent handling of Needle’s story shows promising change. Samantha Battam’s 2019 biography The Secret Art of Poisoning: The True Crimes of Martha Needle and the Old Treasury Building Museum’s 2019 exhibition Wayward Women? provide more measured portrayals of Needle that account for her abusive childhood, her insanity defence and the possibility of intent.73 These works signal a trend towards balanced speculation and an acknowledgement that we can never really know the inner workings of Martha Needle’s mind. Martha Needle and Cecilia Andersen: A comparative study Thirty-one years after the execution of the first and only woman in the colony’s history, the year 1894 saw two executions of women and a third that would follow in 1895. The year 1894 also saw two murder cases tried in Melbourne, anomalous in that they were perpetrated by women who had killed in extraordinary ways. Cecilia Anderson was a Danish woman who lived in Sydney, while Martha Needle originated from Adelaide before relocating to Melbourne, yet these two trials were in many ways similar. Both Andersen and Needle were described as being hard-working and fairly attractive. Both women allegedly attempted suicide after killing their victims, and both women submitted insanity at trial. Whereas Andersen received considerable post-trial support, a mass petition pointing to her ‘disabled’ and ‘weakened’ condition, and a commuted sentence, Needle received little support, global infamy and execution. A comparison of their trials goes some way into exploring how factors of class could override the ‘monster’ label and legitimise claims of mental instability. In addition, Needle’s case suggests that poisoning, branded as it was as a cunning woman’s crime, negated assertions of madness. prison in Australia,’ paper presented at the Current issues in sentencing conference, ANU College of Law, 6-7 Feb 2016, Canberra. 73 Battams, The Secret Art of Poisoning; Old Treasury Building Museum, Wayward Women? launched 27 June 2019. 150 On 19 June 1894, Andersen entered the Southern Cross Hotel on Bourke Street West with a male acquaintance named John Fraser around eight o’clock in the evening. They settled into cosy furniture by the fireplace with a beer each. Over the course of the night, Andersen ordered two whiskeys and two cigars. She sat comfortably nursing her liquor and smoking with her acquaintance, until she pulled out a revolver and shot John twice.74 At trial it was revealed that John had lodged with Andersen for two years and owed her the sum of some £387 in board and expenses. She had endeavoured to retrieve the money and they had met to sign a contract earlier that day, but John had refused to give his signature at the last minute. Andersen was also under the impression John had promised to marry her, and he had since married another woman. Andersen said to her friend Margarey Healey, ‘I will have satisfaction yet or I will take his life… He has injured my pocket and hurt my heart’.75 At trial Judge Madden mentioned that if Andersen killed Fraser at the time of refusing to sign the contract, this being the moment she felt ‘great irritation and anger’ the jury would be justified in finding manslaughter only. As the facts stood, the killing showed deliberate premeditation. Three days before Andersen walked into the Southern Cross Hotel, Martha Needle sat in the Melbourne City Police Court and heard that bail had been refused.76 She had been arrested the previous week for the murder of her future brother-in-law, Louis Juncken, by poisoning.77 As a result of the investigation the bodies of her previous husband Henry Needle and their three children were exhumed, and found to have fatal levels of arsenic. It was revealed that Needle claimed considerable insurance claims on the death of both her young children.78 At her bail application Needle’s defence counsel expressed his dismay at the likely effect of the press coverage in denying Martha a fair trial: ‘I don’t know whether the newspapers are 74 R v Andersen (1894) VPRS 264 P0000/22. Testimony of Margaret Evelyn Healey, Trial Transcript R v Andersen (1894) VPRS 264 P0000/22. 76 ‘The Richmond Sensation,’ Herald, 16 June 1894, 1. 77 R v Needle (1894) VPRS 264 P0001/2. 78 ‘The Needle Poisoning Case,’ Bendigo Independent, 2 August 1894, 3. 75 151 engaged in an attempt or a conspiracy to hang this woman but it looks something like it’.79 Indeed, newspapers proliferated with speculations and gossip regarding ‘the Richmond Poisoning Case’.80 Both the Andersen and Needle trials saw a number of witnesses attesting to the mental instability of the accused. John Fraser’s brother-in-law testified that Cecilia spoke to him, sometimes ‘excitedly and irrationally’, of how John had wronged her.81 He had to reproach her for ‘going on like a lunatic’.82 Andersen’s friend Margaret confirmed that Andersen ‘seemed very much excited and said foolish things… I thought her unhinged… she complained that her brain burned.’83 Martha Needle’s fiancé Otto Juncken and their housekeeper Georgina Lillis testified to her history of fits that came without warning, could occur anytime and rendered her completely unconscious.84 An old friend from Martha’s childhood had also seen her suffer from these ‘seizures’.85 Whereas Andersen’s trial had no medical evidence testifying to insanity prior to the murder, Dr Donald McColl testified that Needle’s condition may be a disease of the nervous system.86 Juries found both women guilty with no recommendation to mercy. Martha Needle’s trial presented the most corroborated evidence of mental instability that included medical testimony, however it was Andersen’s claim to mental instability that was legitimised post-trial and helped to secure her a commuted sentence. Within four days of her guilty verdict, citizens in Melbourne created a petition for Andersen’s reprieve.87 Estimated at 18,000 signatures when presented to the Governor, the petitioners urged for the commutation of the death penalty due to Andersen having ‘already ‘The Richmond Sensation,’ Herald, 16 June 1894, 1. See for example ‘The Richmond Sensation,’ Herald, 14 June 1894, 1; ‘The Tragic Poisoning Case,’ Age 16 June 1894, 9; ‘Richmond Poisoning Case,’ Weekly Times, 11 Aug 1894, 18. 81 Testimony of Thomas Fraser, Trial Transcript R v Andersen (1894) VPRS 264 P0000/22. 82 Testimony of Thomas Fraser, Trial Transcript R v Andersen (1894) VPRS 264 P0000/22. 83 Testimony of Margaret Evelyn Healey, Trial Transcript R v Andersen (1894) VPRS 264 P0000/22. 84 Testimony of Otto Juncken and Georgina Lillis, Trial Transcript R v Needle (1894) VPRS 264 P0001/2. 85 Testimony of Eliza Louisa Martin, Trial Transcript R v Needle (1894) VPRS 264 P0001/2. 86 Testimony of Dr Stewart McColl, Trial Transcript R v Needle (1894) VPRS 264 P0001/2. 87 ‘Melbourne,’ Ballarat Star, 20 Aug 1894, 4. 79 80 152 suffered severe wrongs at the hands of man’, and to hang her ‘in the present weak, helpless and disabled condition’ would be ‘particularly revolting’.88 The signatories were largely women from in and around Melbourne, showing addresses from South Yarra, Windsor, Carlton and Richmond. The Attorney General requested a report on the ‘mental and physical condition’ of the prisoner, and Dr Andrew Shields confirmed that Cecilia’s mind was ‘clear for ordinary, simple subjects’, but mental exercise ‘causes her fatigue’ and ‘she gets confused or muddled’.89 The Governor met the deputation of petitioners and vowed to take their recommendations to the Cabinet meeting later that day; by sunset, Andersen’s case was commuted to imprisonment for life. However, it is unlikely that the petition would have been taken so seriously without the patronage of an influential friend of Andersen’s from Sydney, the wife of the Vice-Consul of Denmark, Paul Holdensen. Holdensen introduced the petitioners to the Governor and as a result of his letters to the Governor in following years, he secured Cecilia’s premature release from prison in June 1903.90 The speedy commutation was possibly intended to avoid international tensions between governments.91 While Andersen received a surprising amount of public support, one incensed citizen wrote to the Age of the seemingly arbitrary decisions of justice meted out by the Executive Counsel. While three was a high number for women executed in one decade, the State proceeded to execute fourteen men in the 1890s, an increase from eleven the year before.92 One of the men executed in 1894 was the African-American Frederick Jordan, who killed his girlfriend Minnie Long after she had refused to return home and stayed out drinking with 88 Petition for the reprieve of Cecilia Andersen, R v Andersen (1894). Report of Dr Andrew Shields to the Governor, 22 Aug 1894, R v Andersen (1894). 90 Paul Holdensen to the Governor of Victoria, 19 Feb 1903, R v Andersen (1894); Central Register for Female Prisoners, PROV VPRS 516 P0002/11. 91 ‘Latest News from the Metropolis,’ Hamilton Spectator, 28 Aug 1894, 3. Two years later, the Vice Consul would again write to the Governor asking for Andersen’s premature release, yet this request was denied. 92 Data from PROV VPRS 264 and VPRS 1100. Eleven men were executed for the 1880s, then fourteen for the 1890s, four for the 1900s, five for the 1910s, two for the 1920s and four for the 1930s. 89 153 friends.93 A citizen using the pen-name ‘Impartial’ argued that Jordan was ‘an ignorant man of an inferior race who committed murder without meditation’.94 On the other hand, Andersen was ‘of good education’ and ‘showed unmistakable malice and openly avowed her intention to kill her victim’. Indeed, witnesses at trial testified that Cecilia had said she would kill John Fraser if he did not repay her, she slept with a revolver under her pillow and, in walking along St Kilda beach, she had commented ‘this is a fine place for revolver practice’.95 ‘Impartial’ argued that a miscarriage of justice had occurred in executing Jordan yet reprieving Andersen and in doing so, highlighted the arbitrariness of the system of capital punishment, particularly in regard to the factors of race and class. Martha Needle had no such financial support or political pressure to advance her case for reprieve. The only petition she received was from the solicitor Marshall Lyle, the same man who had written on behalf of Frederick Deeming two years earlier. Rather than arguing for a ‘weakened’ condition that could diminish responsibility, Lyall placed Needle in the same category he placed Deeming, wherein her madness confirmed a hereditary criminality. While Lyall urged the Governor for Needle’s reprieve, he didn’t do so as a political tool to secure her freedom, but in the belief that it was unlawful to execute an insane man or woman. In order to combat ‘homicides, infanticides and suicides’, the state should implement the ‘preventative arrest’ of all insane persons and enforce ‘permanent detention of all habitual criminals, epileptics and semi-demented never do wells’.96 Lyle’s letters did not evaluate the extent of Needle’s responsibility, but rather, contemplated the best method of punishment and prevention of crime for the safety of Melbourne’s denizens. While there was condemnation of 93 R v Jordan (1894) VPRS 244 P0000/23; VPRS 1100 P0002/2. ‘Letters in brief,’ The Age, 7 Sep 1894, 3. 95 Testimony of Thomas Fraser and Margaret Evelyn Healey, Trial Transcript R v Andersen (1894) VPRS 264 P0000/22. 96 Marshall Lyle to the Governor of Victoria, undated, VPRS 264 P0001/2 R v Needle (1894). See also ‘The Condemned Woman,’ Herald, 4 Oct 1894, 3. 94 154 both women’s deeds as shocking, only Needle received the ‘monster’ label (and has been historicised as such), and only her claims of insanity were used to confirm her criminality. Both cases go some way in complicating Plater and Milne’s ‘chivalry’ theory. Femininity lay at the heart of the public revulsion expressed in Needle’s case, her act ‘oppos[ing]’ as it did ‘the natural instinct of women’ in killing both husband and children, and particularly in the use of poison, an act that was traditionally associated with cunning, unfaithful women.97 However, Andersen challenged traditional notions of woman’s place through her drinking, cigar-smoking, financial independence and use of firearms to solve a dispute. Andersen’s wealthy political connections not only confirmed Andersen’s ‘respectable’ social network, but as a result were able to consolidate her helpless image in the public eye. Interestingly, Andersen’s alleged instability did not temper her agency or aggression as it did in infanticide cases. Justice Madden outlined to the Executive how Andersen’s motives of ‘great and continued irritation’ as well as ‘revenge and jealousy’ presented ‘special features’ that made her case deserving of the Prerogative of Mercy.98 He explained how ‘Andersen took the law into her own hands’, and while he did not condone murder, he legitimised her sense of wounded honour in a way that Ruth Harris identifies of judges in French trials of the same era.99 This may have been because Madden recognised that Fraser had wronged Andersen in two ways that were recognised by the law: refusal to pay a debt and, assuming Fraser had, in fact, proposed to her, breach of promise.100 Andersen’s is a case of diminished responsibility on the basis of mental instability while retaining recognition of the offender’s aggression, a demonstration that insanity was by no means a clear cut tool through which female offenders 97 See Victoria Nagy, Nineteenth-Century Female Poisoners: Three English women who used arsenic to kill (London: Palgrave MacMillan, 2015). 98 Judge’s notes, 22 Aug 1894, R v Needle (1894). 99 Judge’s notes, 22 Aug 1894, R v Needle (1894); Harris, ‘Melodrama, hysteria and feminine crimes,’ 31-63. 100 On breach of promise Australian law, see Alecia Simmonds, 'Promises and Piecrusts were made to be Broke': Breach of Promise of Marriage and the Regulation of Courtship in Early Colonial Australia,' Australian Feminist Law Journal 23, 1 (2005): 99-120. 155 were deprived of agency. It is this complexity that is often missing in the historiography of female criminality. ‘Undue Influence’ in the case of Selina Sangal The low number of women convicted of murder relative to men render their cases less conducive to broad, general patterns. However, qualitative analysis of a select few cases illuminates the gendered politics of how mental aberration was put forward and spoken about during and post-trial. We have seen the effects of ‘feminine’ behaviour, wealthy connections and judicial leniency in the cases of Martha Needle and Cecile Andersen. The case of Selina Sangal throws light on a different way of conceptualising mental aptitude and agency in criminal trials through the idea of female susceptibility and the use of ‘undue influence’. ‘Undue influence’ is a legal doctrine in contract law and probate laws, and not one applied in criminal jurisprudence today. However, references to ‘undue influence’ in historical murder trials raise questions regarding how Victorians viewed the capacity for free will in relationships, particularly where gender dynamics were concerned. In contract and probate laws, ‘undue influence’ refers to ‘a dealing or transaction in which an unfair advantage has been taken of another person’, and the undue influence of persons can be implied in certain relationships such as parent and child, husband and wife, or patient and doctor.101 The English case of Alcard v Skinner (1887) saw Lord Justice Lindley characterise undue influence as ‘the influence of one mind over another’.102 In explaining the term to readers in 1891, the Herald 101 Jonathan Law, ed. Oxford Dictionary of Law 9th ed. (London: Oxford University Press, 2018), online entry retrieved 18 Jun. 2019, from https://www-oxfordreferencecom.ezproxy.lib.monash.edu.au/view/10.1093/acref/9780198802525.001.0001/acref-9780198802525-e-4098. For commentary on the law as it stands currently in contracts see Rick Bigwood, ‘The Undue Influence of ‘NonAustralian’ Undue Influence Law on Australian Undue Influence Law: Farewell Johnson v Buttress?’ Journal of Contract Law 35 (2018): 56-89. 102 Allcard v Skinner 36 Ch. D. 39; quoted in ‘Undue Influence,’ The British Medical Journal vol. 1 no. 3763 (1933): 292. 156 summarised a ‘moral influence’ that could exert ‘a control over the mind of person as absolute as if he used physical force’.103 A survey of the frequency and use of the term in Australian newspapers suggests it enjoyed a period of popular (non-legal) usage in the late-nineteenth century, appearing in newspapers 1,384 times for the decade 1890-99 before regressing to 656 times in 1920-29, and rarely appearing outside of legal jargon today.104 The usage of the term by laypersons was more overtly gendered and appeared in jokes centring on married or flirtatious relations between men and women. For instance, a satire piece in the Prahran Telegraph titled ‘With Undue Influence’ narrativizes a sick wife who convinces her husband to remarry should she remain ill, before magically healing once he sets his sights on another woman.105 In this context the term was used to project anxieties and distaste for the power of the overbearing wife. Conversely, ‘influence’ of men over women was a malleable term and in other instances related to prevailing notions of women’s suggestibility, founded both in the medicalised ‘weakness’ of their bodies and in the child-like innocence promulgated by late-Victorian culture. In fin de siecle Paris, the lawyer and psychiatrist Jules Liégeois warned of the ‘overly supple nature of woman’s will’ which could be controlled with so much as sustained eye contact on a train.106 Closer to home, doctors warned of women’s minds and bodies responding to the slightest external influence.107 In historical criminal trials, ‘influence’ referred to scenarios that could either appoint or diminish the responsibility of female offenders. Women were be portrayed as having exerted influence over men in perpetrating a crime (female victims were also argued to have ‘influenced’ their perpetrators) or being so susceptible to male opinion they were convinced to commit the crime by their male ‘What is Undue Influence?’ Herald, 4 Aug 1891, 2. Statistics sourced from Trove digitised newspapers, 19 June 2019. 105 ‘With Undue Influence,’ Prahran Telegraph, 20 Dec 1913, 9. 106 Ruth Harris, ‘Murder under hypnosis,’ Psychological Medicine, 15, 3 (1985): 492. 107 See Samia Hossain, ‘Antipodean Intimacies: Medical Sex Advice for Women in the Australian Colonies, 1857-1890,’ Australian Feminist Studies, 22, 52 (2007): 89-105. 103 104 157 counterparts.108 ‘Influence’ was essentially a way that citizens could frame agency and mental aptitude outside of the insanity defence. The trial of Selina Sangal and her paramour Auguste Tisler staged a clash of interpretations regarding ‘undue influence’ before the Supreme Court in 1902. Selina, thirtytwo years of age, was engaged in an extra-marital affair with Tisler, a Russian Finn who worked as a labourer for her husband Edward Sangal on their property in Dandenong.109 An old acquaintance said the affair had come about due to Edward’s ill treatment of his wife, that when ‘he struck her on the breast with his fist… Tisler thereupon knocked him down, and said he would not have any woman treated like that in his presence.’110 Another labourer who worked on the property, John Rogers, testified that he had seen Sangal and Tisler laughing together, recalling the couple sitting comfortably in the same bed with their arms around one another, with Tisler saying ‘that bed could tell tales if it could only speak.’111 Edward noticed, and did not like Tisler around the place. He began watching Tisler very closely, and Selina said to John Rogers, ‘If [Edward] does not leave that fellow alone there will be murder done here yet’. Rogers told the court he thought Selina had been referring to Tisler’s short temper at the time.112 On 8 August 1902 Selina gathered her four children in their bedroom where she sat with them as they heard a loud thumping, a man crying out, and what the children soon realised was Tisler in the act of killing their father. The Supreme Court trial before Justice Madden saw two separate narratives emerge regarding who had instigated the crime. Sangal claimed that Tisler had acted alone, and that she had stayed put and not called for help as she feared for her life, while Tisler alleged Sangal 108 For the former, see the carnal knowledge case R v Lim (1896) VPRS 264 P0000/24. The ten-year-old victim was said to have seduced Lim. Justice Holroyd said she was ‘considerably depraved’ and suggested she had actively slept with many other men. 109 R v Sangal (1902) VPRS 264 P0001/4; VPRS 1100 P0002/3. 110 Statement of Mrs Ramsden respecting Mrs Sandal 10 Jan 1906, R v Sangal (1902) VPRS 264 P0001/4. 111 Testimony of John Rogers, Trial transcript, R v Sangal (1902) VPRS 264 P0001/4. 112 Testimony of John Rogers, Trial transcript, R v Sangal (1902) VPRS 264 P0001/4. 158 had encouraged him for six months ‘to put her husband’ and ‘she drove me that far that I didn’t care whether I was living or dead’.113 In his trial notes to the Governor, Madden stated there was ‘no evidence whatever that Tisler exercised any influence upon the prisoner Sangal’, but was persuaded that: she had exercised continued and extraordinary influence upon him to maintain the adulterous intercourse with her and that she had frequently urged him to kill her husband, and that as a result he finally had committed the crime.114 While Madden interpreted the events as the product of a scheming and devious woman, the jury thought otherwise. The twelve men who heard Sangal’s case found her guilty of murder but recommended her to mercy ‘on the ground of the influence which had been exercised over her by August Tisler and of her present condition’.115 Given Madden’s position on the case and Governor Clarke’s agreement that ‘the woman was the primary cause of the crime’, it was Selina’s claim of pregnancy that afforded her time while citizens rallied on her behalf posttrial.116 While the trial jury, on the basis of the evidence put before them, had agreed on Sangal being ‘influenced’ by Tisler in accounting for her complicity in the crime, it was her claim of pregnancy that ultimately confirmed her status as the sympathetic party in the public eye. Governor Clarke ordered for medical opinion in her case, not suggesting that pregnancy would sway his decision to execute, but in wondering ‘whether a woman in Mrs Sangal’s situation might be temporarily irresponsible for her actions’.117 Doctors confirmed her pregnant state yet did not offer a satisfactory answer in regard to her mind, and Clarke ordered that the execution be stayed until Sangal gave birth.118 As Selina prepared to give birth, the Imperial Consul- 113 Trial transcript, R v Sangal (1902) VPRS 264 P0001/4. John Madden to the Governor of Victoria, 2 Oct 1902, R v Sangal (1902) VPRS 264 P0001/4. 115 John Madden to the Governor of Victoria, 2 Oct 1902, R v Sangal (1902) VPRS 264 P0001/4. 116 Governor’s internal note, 4 Oct 1902, R v Sangal (1902) VPRS 264 P0001/4. 117 Governor’s internal memo, 4 Oct 1902, R v Sangal (1902) VPRS 264 P0001/4. 118 Internal record, R v Sangal (1902) VPRS 264 P0001/4. 114 159 General for Russia, Nicolas de Passek, wrote a lengthy letter outlining the factors that warranted Tisler being granted a commuted sentence. De Passek argued that Tisler ‘committed [the murder] not only under the influence of liquor, but also under the undue influence, encouragement and assistance of Sangal’.119 This argument did not assuage the hard stance the Executive desired to take in the case, and Tisler was executed on 20 October 1902. Ultimately, Sangal rather than Tisler benefited from the ‘influence’ narrative. A petition circulated through Melbourne, signed by at least 240 men and women, placed pressure on the Executive to reprieve Sangal. The petition argued that ‘the actual murderer’ (being Tisler) had been punished, and it would not only be cruel but ‘a lasting dishonour and disgrace…on Victoria [and] the British Race’ to execute an enfeebled woman who had just given birth and already suffered the separation from her children.120 Selina’s status as a mother to a newly born child as well as four young children arguably determined her characterisation as a meek woman who had lived in fear of the temper of both the men in her life, rather than a cruel, scheming accomplice to murder. Her pregnancy, at a political point in time where mothers were to be encouraged and protected in their childbearing, had afforded her the time and doubt regarding her mental state that other women who killed their husbands with their lovers had not, such as Elizabeth Scott in 1863.121 Sangal’s case suggests that, while respectability and wealthy connections could result in a lenient sentence on the basis of insanity, pregnancy and its ‘temporary irresponsibility’ would also secure public sympathy in late-nineteenth century Victoria. Her case achieved a commuted sentence without any evidence of mental instability or an insanity defence put forward at trial. Nevertheless, spared executions did not translate into short gaol sentences. Of 119 Nicolas de Passek to the Governor of Victoria, 30 Sep 1902, R v Sangal (1902) VPRS 264 P0001/4. Petition for the Commutation of the Death Sentence passed on Selina Sangal prepared for the Melbourne Christian Assembly and presented to the Governor of Victoria, 25 Nov 1902, R v Sangal (1902) VPRS 264 P0001/4. 121 Laster, ‘Arbitrary Chivalry,’ 76. 120 160 the seven female offenders who received commuted sentences after conviction, six were condemned to life sentences (20 years), including Selina Sangal, who was released after fifteen years due to the tireless efforts of Sister Emile of the Salvation Army, who had visited her in gaol for many years and felt immensely sorry for her.122 Sangal was released to one of the Salvation Army’s Homes for Women on the condition of good behaviour and strict supervision until the Governor was satisfied of her reform.123 In the same vein, the case of Maria Black demonstrates how the female offenders convicted for murder in turn of the century Melbourne did not receive overall leniency in terms of gaol sentences—even where a strong case for mental illness was put forward. The Fury of Maria Black (1916) Baldomero Pinsack was a Spanish cook who was employed by the Weston family in Moonee Ponds for six years. Pinsack enjoyed working for the Weston family, and had good lodgings with them. There was just the slight discomfort brought on by the volatile woman next door, who in their time as neighbours had thrown some fifty love letters over the fence addressed to him. While Baldo would insist to the police he had always sent the letters back unanswered and had only spoken to Maria Black once, Maria’s letters grew increasingly hostile with jealousy. She accused ‘Baldo’ of sleeping with his female employer, forty-five-year-old Mabel Weston, and characterised Weston as taking advantage of him. Maria wrote lines in Spanish, composed poetry and insisted that ‘respectable women don’t let their lodgers paw their private parts’. She implored Baldomero to go to the police about ‘that old dog Mabel’, and to ‘leave the kennel’.124 Pinsack never responded. One afternoon Pinsack, Mrs Weston and her married 122 Mary Anderson the Attorney General, 6 June 1916, R v Sangal (1902) VPRS 264 P0001/4; Sister Emile to the Crown Law Department, 22 Feb 1917, R v Sangal (1902) VPRS 264 P0001/4. 123 This action was carried out under the Crimes Act 1915 ss 564-566. Law Department to the Governor of Victoria, 1 March 1917, R v Sangal (1902) VPRS 264 P0001/4. 124 Letters submitted in evidence, ‘Exhibit E’, Trial Transcript R v Black (1916) VPRS 1100 P0002/5. 161 daughter Clarice were having a cup of tea in their living room when Black broke in brandishing a revolver and shot Mrs Weston twice. On realising Weston was dead, Baldo turned to Black and said, ‘See what you did?’ Black smiled at him. ‘I am pleased of it’. Clarice Weston ran outside in terror, telling an inquisitive neighbour to ‘go inside, a mad woman has shot my mother’.125 In stark contrast to the majority of female convicted cases, Maria Black’s trial offered a litany of medical and family evidence regarding her insanity. In regard to fitness to plead, the press reported that she appeared to understand she had committed the crime and worse, seemed ‘quite cheerful’ when charged with wilful murder.126 There was no ‘feebleness’ or miscomprehension to raise doubts of sane mind pre-trial as in cases of Catherine Whitford and Bridget Walsh in the 1890s. Before the Supreme Court, Black’s father testified to the eccentric nature of his daughter that had persisted ‘since childhood’. William Black recounted instances of ‘madness’ that aligned with concerning symptoms in female lunatics of the period: at school Maria never played with other girls but read books, she grew solitary, took meals on her own and ‘showed a disposition to wander away from home into the bush’.127 William Black’s testimony was somewhat confirmed by the medical testimony presented by two doctors at trial, yet Maria’s insanity defence failed. In Dr William Beattie Smith’s estimation Maria knew what she was doing but lost her self-control and couldn’t help what she did, having suffered from ‘insane jealousy’. Dr John O’Brien agreed that Maria satisfied the M’Naghten rules in that she knew what she was doing and that what she was doing was wrong by law, but ‘the act was not controllable’ and she was ‘blinded by rage’. While William Black sought to testify to his daughter’s explicit lunacy, Beattie Smith and O’Brien found that she did not qualify as legally insane under the M’Naghtan rules. By their account 125 Testimony of Clarice Torrielli, Trial Transcript, R v Black. ‘West Melbourne Tragedy,’ Truth, 30 October 1915, 2. 127 See Rychner, ‘Murderess or Madwoman?’ 96-7; Rychner, ‘The Worst Woman in Melbourne,’ 32. 126 162 she suffered from the extremes of emotion (not insanity, but insane jealousy), and a lack of self-control.128 Maria’s defence counsel explained that the murder was not premeditated; she had entered the house in order to personally deliver a letter to Pinsack, but the sight of him having tea with Mrs Weston triggered a murderous fury.129 While this may have been the case, only legally defined insanity could secure an NGRI verdict, where uncontrolled emotions could not. The jury recommended Black to mercy (the reason not disclosed), yet it is difficult to ascertain any legal chivalry at work here. In a case that involved a woman shooting a perceived love rival, a narrative quickly adopted by the press as ‘a love tragedy’, medical explanations neither framed her actions as ‘hysteric’ nor diffused the anger and wounded pride from her motivation.130 In the same fashion as Cecile Andersen’s case, Justice Hood and the two doctors acknowledged Black’s anger and jealousy in interpreting her actions as ‘blind rage’ and ‘loss of self-control’. Despite Pinsack’s testimony of never having been involved with Black nor spoken to her, the doctors surprisingly did not diagnose Black with delusions of any kind. Black was afforded what could almost be described as a sense of wounded female honour that in a moment of lost self-control, she avenged. However, unlike the men who killed wives or female partners in the same period, doctors did not accord Black the blanket ‘temporary insanity’ that could diminish her responsibility and become a focal point in posttrial advocacy. Black received no petitions for mercy, although she did secure a commuted sentence of ten years imprisonment. Just three months after the Executive announced her commuted sentence, warders transferred Black from Melbourne Gaol to Sunbury Hospital for Testimony of Dr William Beattie Smith and Dr John O’Brien, Trial Transcript, R v Black. Trial Transcript, R v Black. 130 See ‘Love Tragedy,’ Bendigo Independent, 12 Jan 1916, 2; ‘Married Woman Shot,’ Evening Echo, 26 Oct 1915, 4; ‘Mother Fatally Shot,’ Mount Alexander Mail, 14 Oct 1915, 1; R v Black (1902) VPRS 1100 P0002/5. 128 129 163 the Insane (formerly Sunbury asylum), ironically relegating her to the similar confinement and treatment she would have received with an NGRI verdict.131 Conclusion This chapter has presented a complex range of reactions to female offenders who committed murder against non-infants in Victoria between 1880 and 1939. It has engaged with the broad theories of legal chivalry, madness and badness that surface in the scholarship and shown how microanalysis of criminal trials challenge the overarching arguments that in the nineteenth century, contemporaries used narratives of insanity to attribute a blanket pathology to offenders and, in doing so, removed women’s agency in committing criminal acts. Such narratives were multifaceted and depended on the particulars of the crime, the place where it was committed, the woman’s social standing and the political environment at that moment in time. Whereas women largely evaded conviction for murder prior to the 1890s, the punitive politics of that decade saw various narratives of mental illness formed around particular offenders. The case of Ann Silk raises important questions regarding the political involvement of suffragists in criminal cases, and what the silence in her case might imply. Where patriarchal chivalry existed on the part of judges and the Executive, it depended not only on gender but also on class. While the legitimisation of insanity claims in the cases of Andersen and Black could be framed as a patriarchal protection, the way in which it was narrativized did not render the offenders as a hapless victim of circumstance as infanticide offenders and often, female lunatic asylum patients were characterised in the period. Rather, women’s anger, a wounded pride and desire for retribution were legitimised in these cases, explained as a loss of self-control analogous to the ‘temporary insanity’ attributed in cases of 131 Central Register for Male and Female Prisoners, PROV VPRS 516 P0002/13, p. 386. Black was released from Sunbury on 31 October 1919. 164 male-perpetrated murder. While the ‘blind rage’ of female offenders was by no means an overarching explanation as it was for male offenders, these cases complicate the argument that culturally constructed insanity operated only to empty anger and intentional violence from women’s criminal acts. Women who killed victims other than infants in Victoria were anomalies in the eyes of the public. There were no macrostructures such as reproductive politics, no systemic encouragement or overarching narrative of insanity that could bind these nine convicted cases together. It is time to embrace the complexity of historical female offending and the differing notions of insanity that surface in their cases, and to welcome the breadth of difference between the woman who says, ‘before you kill us, I will kill you’ and the woman who smiles as she says, ‘I’m glad I did it’. 165 Chapter Five Male Criminality, War Neurosis and Irresistible Impulse, 19141939 This chapter charts a continuity rather than a disruption in popular readings of mental illness in cases of male-perpetrated homicides between 1914 and 1939. It first considers the impact of the First World War on Australian psychiatry, and the ways in which the Executive, the judiciary and the public negotiated the criminal responsibility of returned soldiers and civilian men who perpetrated intimate partner homicide. While the war spurred the consolidation of professional psychiatry, such professional advances were slow to reach the criminal courtroom and convince the lay public of an objective, scientific science. This chapter explores the ways that lay observers continued to speculate on temporary insanity independent of medical testimony in criminal trials, while simultaneously adopting the new cultural conception of the unstable returned serviceman. Just as in late-nineteenth century cases, the application of ‘insanity’ was applied to some perpetrators and withheld from others as the factor of war ‘service’ began to contribute to constructions of masculinity. I set these continuities in the context of a society that was shifting in three areas: gender relations, economic conditions and the advent of psychoanalysis. Judith Allen characterises the interwar years as a period of relative freedom for women in terms of work and romantic relationships that, in turn, was marked by societal retaliation where women were seen to enjoy this freedom too much.1 Trials for intimate partner homicide reveal the ways that domestic violence persisted in the period and continued to be 1 Judith Allen, Sex and Secrets Sex and Secrets: Crimes Involving Australian Women Since 1880 (Oxford: Oxford University Press, 1990), 132. explained as public readings of temporary insanity, albeit within a changed cultural context. In addition, new conceptualisations of insanity surfaced in trials for intimate partner homicide in this period that drew upon the effect of the financial depression on men, as well as new theories regarding unconscious impulse. During the interwar period overall rates of murder were lower than that of the period 1880-1914, paralleling a general decrease in crime like that found in England.2 The period saw 34 men convicted for murder in Victoria. Convictions spiked during the war and the peak years of the economic depression in 1929 and 1933. The majority of perpetrators worked as labourers, with four exceptions: an inventor, a wine bar owner, an engineer and a ‘traveller’.3 Authorities described three men as ‘career criminals’, all with prior convictions for robbery.4 Two perpetrators were soldiers in the Australian Imperial Army (AIF).5 Crimes were fairly geographically spread, with 40 percent of murders perpetrated in rural locations such as Strathbogie, Staghorn Flat and Kilmore. The median age of offenders was 34 years old, and ten men (29 percent) were executed. The largest coherent category of victims were women who had an intimate relationship with the perpetrator, and claims of insanity surfaced frequently in these trials.6 Intimate partner homicides were often perpetrated (according to court testimony on either or both sides) as a result of sexual jealousy or through escalated violence in 2 Clive Emsley, Soldier, sailor, beggarman, thief: Crime and the British armed services since 1914 (Oxford: Oxford University Press, 2013), 71-72. 3 R v Soro (1914) VPRS 264 P0000/29, 1100 P0002/4; R v Colin (1922) VPRS 264 P0000/30, 1100 P0002/31; R v Sheedy (1933) VPRS 264 P0001/10, 1100 P0002/6; R v Wallace (1938) VPRS 264 P0001/13; 1100 P0002/10. 4 R v Jackson (1915) VPRS 264 P0000/29; 1100 P0002/5; R v Murray (1924) VPRS 1100 P0003/2; R v Skerrit (1930) VPRS 264 P0001, 1100 P0002/6. 5 R v Budd (1917) VPRS 264 P0000/30, 1100 P0002/5; R v Oldring (1918) VPRS 264 P0001/7, 1100 P0002/5. 6 All victims that could be characterized as ‘intimates’ were female—no fathers, sons, brothers, etc. were killed by a perpetrator found guilty in the period. n=10. PROV VPRS 1100 & VPRS 264. 167 the course of an argument. However, compared to the period 1880-1914, defence counsel also raised insanity more frequently in cases where female victims were unknown to the perpetrator, a pattern this chapter will also investigate.7 The case of Arnold Sodeman’s (1936) murders of four teenage girls over the course of six years prompted calls for the reform of the insanity defence in Australian criminal law jurisdictions. Returned Soldiers as Criminal Subjects The First World War was not the first conflict to produce diagnoses connected with service or to see returned soldiers convicted of murder in Victoria.8 The trial of Joseph Pfeffer, a soldier who served in the South African War (Boer War) and in 1911 shot his sister-in-law after months of trying to win her affection, provides a useful starting point in assessing how understandings of mental illness shifted after 1914. Pfeffer’s insanity defence failed and post-trial a deputation of activists petitioned Governor John Buller to reprieve Pfeffer due to his mental instability, which they conceived of in nineteenthcentury terms. Activists argued that a relative of Pfeffer’s had been confined to a lunatic asylum, evidence of a hereditary predisposition to mental illness that afflicted Pfeffer when a South African soldier hit him over the head with a blunt rifle.9 Pfeffer’s case exemplifies the experience of Boer War soldiers who were treated the same as civilian 7 n= 5. Effie Karageorgos, ‘Mental Illness, Masculinity and the Australian Soldier: Military Psychiatry from South Africa to the First World War,’ Health and History 20, 2 (2018): 10-29; Fiona Reid, Broken Men: Shell Shock, Treatment and Recovery in Britain, 1914-1930 (London: Continuum, 2010), 11, 13. 9 R v Pfeffer (1912) VPRS 264 P0000/28; VPRS 1100 P0002, 4; ‘Condemned Murderer: Plea of Insanity,’ Argus, 25 Apr 1912, 7; ‘Condemned Man Pfeffer,’ Age, 25 Apr 1912; ‘Condemned Man Pfeffer,’ Bendigo Independent, 25 Apr 1912, 2. 8 168 lunacy patients, their illness viewed a by-product of physical wounds and their service garnering no preferential treatment before the courts or among the public.10 The experience of the First World War wrought psychological damage on thousands of returned soldiers in Australia.11 When Australian doctors noted psychological symptoms among the first AIF combatants in 1915, ‘shell shock’ was adopted as a broad-ranging explanatory term.12 It was clear that soldiers were suffering mentally from the sensory experience of war, yet British and Australian doctors working on behalf of the government were quick to assert that this mental suffering was not a product of the war alone, but presented only in men pre-disposed with hereditary ‘weak nerves’.13 This medical position transferred the cause of psychological disturbance from military conflict to the individual, and in doing so, removed Government responsibility for these ‘weak’ cases both in the field and on their return. Historical literature on the mental health of returned soldiers has largely focussed on individual cases and official responses, with recent work extending this framework to the strain of repatriation on familial relationships. 14 Not every soldier Karageorgos, ‘Mental Illness, Masculinity and the Australian Soldier,’ 14-16. The number of soldiers afflicted with shell shock remains difficult to ascertain. Arthur Butler, the official appointed historian of the Australian Army Medical Services (1914-1918) estimated that 80 percent of returned soldiers who sought medical services on repatriation suffered from mental disturbances. Official statistics indicate that between 2,500- 3,300 soldiers received pensions for war neuroses annually after the war. Arthur G. Butler, Official History of the Australian Army medical Services in the War of 1914-1918, vol. III (Canberra: Australian War Memorial, 1943), 965; Marina Larsson, Shattered Anzacs: Living With The Scars of War (Sydney: University of New South Wales Press, 2009), 149-77. 12 Joy Damousi, ‘Australian Medical Intellectuals and the Great War,’ Australian Journal of Politics and History 53, 3 (2007): 439; Sandy Macleod, ‘Australasian contributions to the ‘shell shock’ literature of World War I,’ Australasian Psychiatry 23, 4 (2015): 396. 13 Grafton Elliot Smith, ‘Shock and the Soldier,’ Lancet (April 1916): 813-817; Eliot Smith and Tom Heatherly-Pear, Shell Shock and Its Lessons (Manchester: Manchester University Press, 1917), 23; Elizabeth Roberts-Pedersen, ‘A Weak Spot in the Personality? Conceptualising ‘War Neurosis’ in British Medical Literature of the Second World War,’ Australian Journal of Politics and History 58, 3 (2012): 408-420. 14 See Ruth Rae, ‘A Historical Account of Shell Shock during the First World War and Reforms in Mental Health in Australia 1914-1939,’ International Journal of Mental Health and Nursing 16 (2007), 267; Michael Tyquin, Madness and the Military: Australia’s Experiences of the Great War (Loftus: Australian Military History Publications, 2006), 14; Kate Blackmore, The Dark Pocket of Time: War, 10 11 169 afflicted with shell shock received medical treatment on return. While historians argue that the Australian repatriation system was relatively generous compared to the English and Canadian systems, Australia’s was not so benevolent in cases of mental illness.15 Soldiers were often denied pensions due to findings that shell shock originated from pre-existing causes and therefore did not classify as a war-induced health problem. In addition to the view of shell shock as a sign of male weakness and the medical rendering of the illness as predisposed, certain doctors warned that soldiers would feign madness for a pension.16 Outspoken doctors such as Dr John William Springthorpe argued that sufferers were rarely feigning symptoms, and shell shock (known as war neurosis by the 1920s) deserved more medical attention.17 Soldiers who were lucky enough to receive recognition under the Repatriation Department were put into special military wards and received better treatment than general psychiatric patients.18 This medical attention was largely due to the efforts of families, who communicated with the department through organisations such as the Sailors’ and Soldiers’ Father’s Association (SSFA) and advocated segregation from lunacy patients to ensure that their relatives were treated as soldiers rather than stigmatised as mad.19 Though official medical classification of war neurosis relied on Medicine and the Australian State 1914-1935 (Adelaide: Lythrum Press, 2008); Stephen Garton, The Cost of War: Australians Return (Melbourne: Oxford University Press, 1996). 15 Kate Blackmore, The Dark Pocket of Time. On the Repatriation System, see Stephen Garton, The Cost of War; Clement John and Jacqui Rees, The Last Shilling: A History of Repatriation in Australia (Melbourne: Melbourne University Press, 1994). 16 Fay Anderson, ‘Collective Silence: Australian Press Reporting of Suffering during the World Wars,’ Journalism History 40, 3 (2014): 150. Discussion of feigned shell shock was also discussed in Victorian newspapers. ‘Shell-shock Simulated,’ Creswick Advertiser, 1 Mar 1918, 1; ‘Bigamist’s Novel Defence: Shell Shock Story Disbelieved,’ Argus, 17 Oct 1922, 12. 17 J. W. Springthorpe, ‘War Neuroses and Civil Practice,’ Medical Journal of Australia (4 October 1919): 280-84. Springthorpe also wrote a play, ‘War’s Awakenings,’ (1936) that spoke to the soldier experience of shell shock. Joy Damousi, ‘John Springthorpe’s War,’ The La Trobe Journal 96 (2015): 103-116. 18 In some cases they were put into the specially erected military hospitals, such as Mont Park Military Mental Hospital in Melbourne and Broughton Hall in Sydney. 19 Marina Larsson, ‘Families and Institutions for Shell-Shocked Soldiers in Australia after the First World War,’ Social History of Medicine 22, 1 (2009): 97-114. 170 theories of heredity, families tended to view soldier patients differently to general ‘lunatics’ and believed that with the right treatment, they could return to their former selves. 20 Marina Larsson situates this policy of patient segregation within a wider framework of post-war ‘preference’, where soldier citizens were bestowed (or promised) certain social benefits in recognition of their service.21 Problems arose where returned soldiers did not behave as model citizens, due to mental illness, violent behaviour, or both. Court records suggest that violence enacted by returned soldiers, particularly against wives or girlfriends, was a serious issue in Australian households. Stephen Garton writes that crimes against the person increased by twenty percent in the years immediately after the war, and while this statistic is possibly true of physical and sexual assaults in Victoria, this is not borne out by the data on murder or manslaughter convictions for the same period.22 The extent to which returned soldiers perpetrated serious crime remains unclear, as quantifying such data remains a large and methodologically difficult task for researchers. For this reason, the most comprehensive study to date, Elizabeth Nelson’s Homefront Hostilities, compiled statistics on wife abuse cases from one local court, the South Melbourne Court of Petty Sessions, for the years 1905-1929.23 Nelson’s data shows there was a general spike in crimes against the person among the petty courts in the years 1919 and 1920.24 20 Soldiers would provide the example that led theories in the 1920s to espouse that everyone could go a bit mad, and with the help of therapy could prevent the full effects of insanity. This explicit link is made in articles such as ‘Psychiatry,’ Age, 2 Jul 1921, 22. 21 Larsson, ‘Families and Institutions,’ 103. 22 Stephen Garton, The Cost of War, 197; S. K. Mukherjee et al., Source book of Australian Criminal and Social Statistics 1804-1988 (Canberra: Australian Institute of Criminology, 1988), 507. 23 Elizabeth Nelson, Homefront Hostilities: The First World War and Domestic Violence (Melbourne: Australian Scholarly Publishing, 2014), xvii-xvx. 24 Nelson, Homefront Hostilities, 143. 171 Another problem facing historians interested in returned soldier violence is assessing the relationship between the experience of warfare and post-war acts of violence. A popular stance adopted by the British Home Office and Australian commentators in both the world wars was that any violence committed by soldiers was committed by a ‘criminal element’, that is, people who would have committed crime prior to being enlisted.25 In his study of crime in the British armed forces between 19161919, Clive Emsley persuasively argues that, rather than ordinary crime incidences simply being transferred from the civilian to the military sphere, both the adverse conditions and the opportunities of service led to the perpetration of theft, sexual assault and physical violence at the hands of soldiers.26 In assessing whether violent crime was the product of war-induced mental instability, the question becomes even murkier. Elizabeth Nelson excludes the possibility of war trauma from cases where the returned soldier had records of violence prior to enlistment or had not seen action at the front, yielding 29 (55 percent) of returned soldiers who possibly were mentally affected when committed violence against a spouse.27 The following case studies of the two servicemen convicted for murder in Victoria do not attempt to assess the prevalence of mental illness in soldiers who committed violent crime. Rather, these cases demonstrate the way in which returned soldiers were publicly treated as unique criminal subjects due to the possibility of shell shock, despite the absence of psychiatric testimony or judicial leniency in these trials. Law enforcers hesitated to punish returned soldiers, whom many feared could Emsley, Soldier, Sailor, 14; Peter Hopper, ‘Melbourne’s Peace Day Riots, July 1919,’ Sabretache vol 50, 1 (2009): 31. 26 Emsley, Soldier, Sailor, 14. 27 Nelson, Homefront Hostilities, 184-185. 25 172 potentially re-arm themselves and perpetrate organised violence.28 Both Elizabeth Nelson and Judith Allen indicate how claims of shell shock prompted judicial leniency toward returned soldiers in the lower courts.29 Cultural permissiveness produced a stereotype that Elizabeth Nelson has termed ‘the disturbed and dangerous soldier’, a man who was violent due to mental imbalance, his actions pitied rather than condemned.30 In contrast, the two convicted murder trials discussed here align more closely to Emsley’s survey of homicide trials in England, where mental illness was more often raised as a mitigating factor among others rather than as an insanity defence, and a factor that was not always linked to service.31 Returned Soldiers on trial: Albert Budd and Arthur Oldring The two former AIF soldiers convicted of capital murder in Victoria present similar narratives with radically different public responses. The Executive Council ordered that both Albert Budd and Arthur Oldring be executed, reflecting a government view that did not excuse the violence of convicted servicemen even where mental instability was raised and public support was evident. Although both men ultimately faced the noose and their respective defences of insanity were rebuffed, citizens orchestrated a substantive post-trial campaign for Budd’s mercy and fell silent for Oldring’s case. Both men had killed women they were close to and their cases mirrored each other with each man’s motive allegedly centring on the belief of their victim’s sexual impropriety. 28 Judith Allen, Sex and Secrets, 131. Newspapers illustrate the unruly mob violence that returned soldiers took part in, and the anxieties they espoused. ‘Tarred and Feathered: Union Official and Recruiting,’ Warrnambool Standard 23 Dec 1915, 4; ‘Soldiers’ Attitude Stated,’ Herald, 6 Jun 1919, 1; ‘Kalgoorlie Trouble: Soldiers and Italians,’ Argus, 15 Aug 1919, 8. 29 Nelson, Homefront Hostilities, 83-111; Allen, Sex and Secrets, 131-139. 30 Elizabeth Nelson, 'Victims of War: The First World War, Returned Soldiers and Understandings of Domestic Violence in Australia,' Journal of Women's History, 19, 4 (2007): 86-106; Elizabeth Nelson, 'Civilian Men and Domestic Violence in the Aftermath of the First World War,’ Journal of Australian Studies 27, 76 (2003): 97-108. 31 Emsley, Soldier, Sailor, 155. 173 The same defence lawyer represented both men, and placed emphasis on their ‘blank minds’ at the time of the crime.32 There are numerous factors to suggest that the trope of the ‘disturbed and disorderly’ returned soldier was not available to men like Arthur Oldring. Oldring had not seen overseas service and had been stationed as a gunner at Seymour when the warrant went out for his arrest in 1917.33 Not a combat veteran, Oldring could not reach for his military record as an explanation for his actions or an attestation to his character. He did not have a respectable relationship with his victim, Margaret Taylor, a widow living in North Melbourne whom he became acquainted with on leave in 1917 and continued to see until he killed her in November of that year. In addition, the crime itself shocked the public. Margaret and her 12-year-old daughter, Rosie, followed Oldring up to Seymour when his leave ended, assuming different names and hiring a room near the military base.34 One Sunday in November the three of them were camping in nearby Trawool when Oldring bludgeoned mother and daughter in the head with an axe, before disposing of their bodies in the Trawool River. At trial Chief Justice Madden chose to admit post-mortem evidence that Rosie’s hymen was broken and Oldring’s prior conviction of the rape of a minor in Perth 17 years earlier, for which he served seven years imprisonment.35 The evidence suggested that Oldring had assaulted Rosie and then killed both women to bury his crime. At trial, Oldring’s insanity defence made no reference to his status as a soldier but was conceived of in nineteenth-century terms similar to Joseph Pfeffer’s. A Dr ‘Trawool Murders: Oldring on Trial,’ Bendigo Independent, 20 Feb 1918, 3. NAA: B2455, Oldring A G p 4. 34 Judge’s notes, R v Oldring (1918) VPRS 264 P0001/7; VPRS 1100 P0002/5. 35 Oldring was on ticket of leave for this charge when he was charged and convicted of attempted murder in Western Australia in 1909. He was subsequently placed on Rottnest Island and escaped from there in 1914, working odd jobs in WA and SA under various names until he enlisted with the AIF in 1916. Memo, Criminal Investigation Branch, 4 March 1918, R v Oldring (1918) VPRS 264 P0001/7. 32 33 174 Murphy testified that Oldring’s was a case of ‘masked epilepsy’, a condition where the patient may ‘unconsciously commit an act of violence and forget all about it [yet] might nevertheless seek to conceal all traces of it by flight or otherwise’.36 Oldring allegedly inherited this illness along with his two sisters, one of whom had been committed to a lunatic asylum; the other committed suicide the day she was interviewed by police regarding Oldring’s arrest. Oldring himself testified to hitting his head in a bicycle accident in the past, and again when cutting trees.37 Medical witnesses for the Crown firmly rebutted any evidence of inherited or physically induced insanity. The military remained silent, and citizens did not attempt to sway the Executive’s decision with thousands of signatures. Nelson writes that [Oldring’s] ‘criminal background and the horrific nature of his crime’ precluded him from the leniency accorded to other soldierdefendants.38 It was perhaps also the absence of service abroad, and the social currency that attended it, that was a crucial factor in Oldring’s outcome. The trial of Albert Budd forms a marked contrast to the Oldring case. Tried before the Central Criminal Court in 1917, the honour of Albert Budd’s war service sat uncomfortably alongside a recent history of antagonism with his victim and a seemingly deliberate murder. Budd enlisted in the army in 1914 and at the age of thirty-seven saw action at Gallipoli where shrapnel wounded his left arm and necessitated his return home to Victoria by Christmas of 1915.39 He continued to live with his foster sister, a young woman named Annie Sampson, and her husband Stephen.40 Stephen Sampson Trial transcript, R v Oldring (1918) VPRS 264 P0001/7; ‘Trawool Tragedy’ The Evening Echo 21 Feb 1918, 4. 37 Trial transcript, R v Oldring (1918) VPRS 264 P0001/7. 38 Nelson, Homefront Hostilities, 77. 39 NAA: B2455, Budd A E p 41. 40 ‘Sampson’ is used interchangeably with ‘Samson’ in the capital case files, Stephen’s AIF documentation and in newspaper reports. I follow the official court documents in using the former spelling. NAA: B2455, Samson S G. 36 175 left for the front himself in 1917. During his absence, Budd noticed the close relationship that developed between Annie and a railway engine driver named Alexander Campbell. When Budd saw Campbell leaving the house one night, he confronted Sampson and a heated argument ensured, leading Annie to repeatedly threaten to call the police and Budd’s eventual departure for Annie’s brother’s home. In the following months, Budd’s unwelcome visits, his spying in the lane adjacent to Sampson’s house and the eventual smashing of her windows prompted Annie to make several complaints to a local constable. Budd remained unperturbed, and according to his testimony, one morning he peered through her window to see her in bed with Campbell. ‘You dirty dog’, Budd called out. ‘I have caught you again have I? If [Stephen] were home he would not let you out through a door or window, he would kill you'. On a night several weeks after the incident, Budd entered the house and waited until Annie arrived home and put herself to bed, whereupon he surprised her and slit her throat with a razor. A neighbour found Budd the next morning in his own home, having cut his throat in an attempted suicide. Budd was delivered to hospital, where hours later he confessed to a constable his deliberate crime. He would later tell the Central Criminal Court that he had no memory of this exchange.41 At trial Budd’s counsel argued that Annie had rushed at Budd who then raised his razor in self-defence, and if the jury were not convinced of this then they should take Budd’s war-induced mental instability into account. Jurors heard of Budd’s death threats toward Annie several times prior to the murder, where he had stated that he would rather see her dead than ‘carrying on that way’.42 Taking the stand in court, Budd reiterated that he had no memory of such acts or conversations. The defence called no 41 Testimony of Albert Budd, trial transcript, R v Budd (1917) VPRS 264 P0000/30; VPRS 1100 P0002/5. 42 Testimony of Albert Budd, trial transcript, R v Budd (1917) VPRS 264 P0000/30. 176 medical witnesses, relying instead on the testimony of Annie’s father-in-law, Stephen Sampson Senior. Sampson confirmed he had ‘noticed a great difference in Budd’ since his return from the front, noting that Budd had a ‘jealous disposition’ and his habit of drinking since the war had likely driven him to violence.43 While this testimony did not convince Chief Justice Madden or the jury, Budd’s trial inspired significant post-trial advocacy on the basis of his mental ill-health. At the behest of Stephen Sampson Snr., the Returned Soldiers and Sailors Imperial League of Australia (RSSILA) picked up Budd’s cause post-conviction. The RSSILA had originally strived to be apolitical, yet abandoned this position insofar as the organisation was not affiliated with any political party but acted as what G. L. Kristianson has termed an effective ‘pressure group’.44 In the months after Budd’s case, a circular memo sent out to all RSSILA branches described the vision of the organisation as enabling returned soldiers, ‘a great and salutary power in the land’, to play ‘a tremendous part in shaping the destinies of the country’.45 Significant effort was put into Budd’s case. A petition in support of Budd successfully attracted thousands of signatures, many from soldiers and sailors along with their service numbers and just as many from civilians who RSSILA representatives had likely approached on streets around Port Melbourne.46 Each page of the 100-page petition was headed with a printed paragraph stating the factors that diminished Budd’s responsibility, these being ‘the 43 Testimony of Stephen Sampson Sr, trial transcript, R v Budd (1917) VPRS 264 P0000/30. Martin Crotty, ‘The Returned Sailors’ and Soldiers’ Imperial League of Australia, 1916-1946,’ in Anzac Legacies: Australians and the Aftermath of War, ed. Martin Crotty and Marina Larsson, (Australian Scholarly Publishing: Melbourne, 2010): 170; G. L. Kristianson, The Politics of Patriotism: The Pressure Group Activities of the Returned Servicemen’s League (Canberra: Australian National University Press, 1966), 24. 45 Returned Sailors and Soldiers’ Imperial League of Australia, ‘Circular Memo to Branches,’ 9 May 1918. Sourced in G. L. Kristianson, The Politics of Patriotism, Appendix A. 46 A majority of signatories resided in Port Melbourne. Budd’s case occurred at the height of the RSSILA’s membership: in 1918 the RSILLA had 28,679 members nationally. Crotty, ‘The Returned Sailors’ and Soldiers’ Imperial League of Australia, 1916-1946,’ 167. 44 177 excellent character borne as a soldier of the Empire’, the respect of his many friends and acquaintances, and ‘the fact that he has returned wounded from honourable active service abroad.’47 These arguments were picked up by the press, with a newspaper as far away as Brisbane arguing that the legacy of Budd’s war service was his ‘impulse to commit crime’ and equated his execution to ‘punishment for his service to his country in the trenches.’48 In his cover letter to the Governor, Victorian secretary of the RSSILA, A. M. David stated the organisation’s reasoning in more detail, emphasising two key points. The first argued that Budd’s letter and sworn testimony proved that he believed the alleged misconduct on Mrs Sampson’s behalf to be true, and if the jury accepted this then they would have accepted the ‘disordered and bewildered’ state of the defendant’s mind at the time of the crime.49 The second point stressed Budd’s war service and his ‘deranged nervous system’ as the product of military conflict.50 Delivered to the Governor along with the RSSILA petition, five affidavits from Annie’s father-in-law and four of Budd’s long-term friends swore to the effect that Budd was ‘truthful and of good moral character’ but known to be ‘eccentric’, ‘queer at times’, and ‘did not seem to be the same man that left to go away with the first contingent’.51 Unlike Pfeffer’s case, Budd’s insanity was not conceived as the product of his wounded arm or a hereditary predisposition. War service was sufficient to establish mental instability, yet Referring to Budd’s wounded arm. Petition of the RSSILA forwarded to the Attorney General, R v Budd (1917), VPRS 264 P0000/30. 48 ‘Society’s Duty to Returned Soldiers,’ National Leader (Qld), 1 Feb 1918, 2. 49 Letter from A. M. David to the Governor of Victoria, 25 Jan 1918, R v Budd. 50 Letter from A. M. David to the Governor of Victoria, 25 Jan 1918, R v Budd. 51 Letter from A. M. David to the Governor of Victoria, 25 Jan 1918, R v Budd; Affidavits of Stephen Sampson, Walter Gill, Henry Howlett, Alfred Erridge, John Purcell, dated 25 Jan 1918, R v Budd, VPRS 264 P0000/30. 47 178 this instability was referred to in vague terms such as ‘changed’ and ‘disordered’ with no reference to symptoms or medical diagnoses such as shell shock or war neurosis. The absence of medical evidence or expertise in the RSSILA’s post-trial campaign is notable. Though doctors in the Department of Repatriation may have been conservative with their recognition of shell-shock, a cohort of Victorian doctors were very much active in communicating the mental effects of warfare to the broader public in the pages of the Medical Journal of Australia, metropolitan newspapers, and in selfauthored pamphlets.52 As we have seen, nineteenth-century activism in cases such as that of James Johnston relied on the examinations of medical experts to secure clemency— even where this evidence was merely used to prop up preconceived public opinion.53 The decision of the RSSILA not to enlist the aid of doctors in proving Budd’s mental instability is telling, particularly as RSSILA members physically collected upward of a thousand signatures suggesting that time and organisational investment were not great constraints in this regard. The silence implies that the soldiers who spearheaded the campaign may have held a certain confidence in their own judgement of insanity; lived experience carried intimate knowledge of fellow servicemen. The rhetoric surrounding the case also suggests that perhaps at the heart of it, this was not a medical matter at all. Judgments regarding Budd’s insanity were linked to the sexual politics inherent to the trial narrative. Among a close-knit working-class community in North Melbourne, Budd engendered as much, if not more, sympathy than his victim.54 Annie Kate Blackmore, The Dark Pocket of Time; Damousi, ‘Australian Medical Intellectuals and the Great War’; Damousi, ‘John Springthorpe’s War’; Springthorpe, ‘War Neuroses’; ‘Shell Shock: Opinion of Doctors,’ Shepparton Advertiser, 25 Sep 1916, 1; ‘The New Psychology,’ Argus, 14 Feb 1922, 10. 53 R v Johnston (1891). 54 Annie Sampson, as with many other victims of murder in the period 1914-1918, did not receive much press coverage in relation to Budd’s crime. 52 179 Sampson was a politically-active young woman who had served as secretary to the Port Melbourne Labour Council for four years and in the months prior to her death had been distributing relief to workers on strike, yet when she allegedly had sexual relations with another man while her husband served his country abroad, she transgressed her role as married woman.55 To some, she had betrayed two servicemen: her husband, by this time lying in a hospital in England, and her foster brother, who had stepped into a selfappointed role as her male protector.56 The years during and immediately following the First World War were marked by social anxiety regarding female infidelity on the home front. The trope of the ‘cold and unfaithful New Woman’ who was educated, silver-tongued, financially stable and sexually flippant occupied increasing screen time and newspaper attention as Australia entered the 1920s.57 Historians note how this suspicion of women led to a violent retaliation that shifted gender relations in the interwar years, with Judith Allen referring to the period as a ‘[distinct] crisis in Australian masculinity’. 58 In 1915 a Truth article pondered on the jealousy of Australian men when ‘their girl happens to prefer some other chap… [this] seems to stab at their vanity, and the only panacea for it is to murder the girl.’59 In New South Wales, Judith Allen examined how intimate partner homicide became more visible in this period, with more killings of this kind occurring in public 55 Testimony of William H Anderson, R v Budd (1917) VPRS 264 P0000/30. Stephen’s mother only chose to notify him regarding his wife’s murder when a corneal ulcer hospitalized him in late 1917 and confirmed his imminent return home. He landed in Victoria in March 1918, roughly two months after Budd was executed. There is no telling of his reaction to the news, and the only known record after discharge from service is an appeal to the Repatriation Department regarding poor employment prospects, as well as an address that shows he moved from the house where his wife had been killed. NAA: B2455, Samson S G, p. 38. 57 See Joanne Aitken, ‘Representations of Wife Beating in Australia, 1880-1914,’ (PhD dissertation, Monash University, 2005); Truth, 26 Apr 1924, 9. 58 Allen, Sex and Secrets, 132; Judith Allen, ‘The invention of the pathological family: A historical study of family violence in N.S.W.,’ in Family Violence in Australia, ed. Carol O'Donnell and Jan Craney (Melbourne: Longman Pearson, 1982), 14; Nelson, Homefront Hostilities, 164-182; Stephen Garton, ‘War and masculinity in twentieth century Australia,’ Journal of Australian Studies (1998): 93. 59 Truth, 24 July 1914, 4. 56 180 spaces.60 This narrative of deceit proved potent when applied to unfaithful wives and girlfriends of returned soldiers, positioning the woman as all the more selfish as ‘the girl who wouldn’t wait’.61 Though no one disputed that Annie Sampson was the victim, a sympathetic public rendered the returned soldier a victim too.62 Larsson’s framework of soldier ‘preference’ can be witnessed in the politics of sympathy for convicted offenders, where war service could put the extent of criminal responsibility into doubt. Annie’s father-in-law had confronted her regarding the affair, communicating to her the deep ramifications such rumours posed to family reputation. The only words of Annie Sampson that survive, whether spoken or not, were in response to her father-in-law and in reference to Budd: ‘he is not my keeper’.63 Posttrial, Sampson signed an affidavit stating he was satisfied that Budd had spoken the truth.64 Budd’s violence silenced Annie, and both the murder and her father-in-law’s campaign for Budd’s clemency smacks of a symbolic sexual ownership that was implicitly supported by a wider community in not distancing or disavowing Budd from the cohort of returned serviceman as a ‘bad element’. The culmination of this support shown in the fifty visitors who said goodbye to the prisoner in Melbourne Gaol prior to his execution, and the large group of soldiers who solemnly saluted in the street across the road as the noose dropped.65 Allen, Sex and Secrets, 132; Carolyn Strange, ‘Masculinities, Intimate Femicide and the Death Penalty in Australia, 1890-1920,’ British Journal of Criminology 43 (2003): 315. Andy Kaladelfos argues that rates of child homicide increased where wives filed for divorce. Andy Kaladelfos, ‘The dark side of the family: paternal child homicide in Australia,’ Journal of Australian Studies 37, 3 (2013): 345. 61 Garton, ‘War and Masculinity,’ 93. 62 ‘Death Penalty is Paid by Murderer of Sister: Soldiers Salute Victim,’ Herald, 29 Jan 1918, 1. The term victim was indeed applied to Budd by the returned soldiers who saluted him as the noose dropped, and a young woman told the Herald reporter that ‘the respect shown to the prisoner be published so all would know. ‘He died like a brave soldier,’ she said. 63 Testimony of Stephen Sampson (Snr.), R v Budd (1917) VPRS 264 P0000/30. 64 Affidavit of Stephen Sampson, 25 Jan 1918, R v Budd, VPRS 264 P0000/30. 65 ‘Death Penalty is Paid by Murderer of Sister: Soldiers Salute Victim,’ Herald, 29 Jan 1918, 1. Printed verbatim in Port Melbourne Standard, 2 Feb 1918, 4; Weekly Times, 2 Feb 1918, 40; Bendigo Independent, 30 Jan 1918, 7 and many more local and regional papers. 60 181 ‘I love my Mag’: Love and murder in the Interwar Years Crime was one of several hallmarks of the era in the popular imagination. However, crime statistics reveal a decrease in offences against the person during the 1920s compared with pre-war figures.66 Chris McConville argues that the real decline in crime existed alongside an ‘imagined’ increase in urban crime, spurred by anxieties of lawbreaking during these years.67 There may have also been fewer arrests during the early 1920s due to inner-city police strikes and subsequent dismissal of a significant number of the Victorian police force.68 It was only in the 1930s that interpersonal crime increased once more in what can be attributed to desperate acts during the depression years.69 The 1920s and 1930s presented contradictory messages to Australian women, offering more avenues for social and financial independence while simultaneously restructuring society along a modernised gendered divide. The office and the public bar were now spaces women could enter, only to find designated ‘women’s spaces’. Similarly female voices were taken more seriously in print, only to be streamlined into women’s magazines. 70 Marilyn Lake terms the ‘feminised 1920s’ as a period of reactionary hostility where women stepped too far beyond their boundaries.71 In part a 66 A. M. Laughton Victorian Year-Book 1918-1939, ABS (Melbourne: Government Printer). Offences against the person fell from 3.7 per thousand head of population in 1890 to 0.9 in 1929. 67 Chris McConville, ‘Melbourne Crime: From War to Depression, 1919-1929,’ Australian Dictionary of Biography, http://adb.anu.edu.au/essay/6/text28416, originally published 23 May 2013, accessed 27 July 2020. 68 Janet McCalman, Struggletown: Public and Private Life in Richmond 1900-1965 (Melbourne: Melbourne University Press, 1984), 108. Following the strike of 1923, over 600 policemen were discharged, significantly reducing police numbers. 69 A. M. Laughton Victorian Year-Book 1918-1939, ABS (Melbourne: Government Printer). The peak for the period was 33 people charged with murder or attempted murder in 1937, with only 15 (13 male, 2 female) committed for trial. 70 Allen, Sex and Secrets, 131. 71 Marilyn Lake, ‘Historical reconsiderations IV: The politics of respectability: Identifying the masculinist context,’ Australian Historical Studies 22, 86 (1986): 130. 182 response to the suffrage movement and in part a means to grapple with a generation of men irreparably damaged by war, a new masculine ideal replaced middle-class aspirations for sensitivity, intellectualism and domesticity: the ‘hard faced’, rough and non-sentimental digger.72 Divorce became more common and violent retaliation by estranged husbands more violent.73 Cases of femicide in Victoria during this time present a pattern of cultural anxieties surrounding gender, labour and leisure, with female victims demonstrating the mobility and financial independence open to working-class women. 74. Josephine Kotsiakos had divorced her husband Arthur on grounds of misconduct in 1924, yet presumably due to the financial cost of proceedings or for the sake of her son, continued to live with him and met her death when he shot her in 1927.75 Her ex-husband had communicated suspicions of her having found another romantic partner, and reportedly said to Josephine’s sister that he would ‘finish her’ if she found someone else.76 Margaretta Williams, a single woman, migrated to Australia to make a life for herself as a domestic servant in 1927 at the age of 24. She had a secure position and friends in Melbourne when an ex-boyfriend followed her from England and killed her when she refused to resume their relationship.77 Daisy Ledger was a widow in fairly good circumstances in 1929, when married man Thomas Bacon killed her for not returning his romantic feelings.78 Kathleen (Kitty) Dorman was a 24-year-old machinist working in Melbourne when she engaged in an extra-marital affair with John Boles, who, in a 72 John F. Williams, Quarantined Culture: Australian Reactions to Modernism 1913-1939 (Cambridge: Cambridge University Press, 1995): 6. 73 Allen estimates that in NSW, 81 percent of all women killed by men in the 1930s had separated from them. Allen, Sex and Secrets, 132. 74 Liz Conor, The Spectacular Modern Woman: Feminine Visibility in the 1920s (Indiana: Indiana University Press, 2004): 46-76. 75 R v Kotsiakos (1927) VPRS 264 P0001/8. 76 ‘Divorced Husband’s Jealousy,’ Age, 28 April 1927, 11. 77 R v Carr (1928) VPRS 264 P0001/8. 78 R v Bacon (1929) VPRS 264 P0001/9. 183 depressed state, killed her in 1933.79 In particular, many of these victims embodied the singleness that Catriona Elder has argued came to represent ‘physical and geographical freedom’ for women of the period.80 The stereotypes of the urban, modern woman of the 1920s are demonstrated in the case of R v Carr, one of the first cases of convicted femicide in which the press publicly denigrated the female victim. Though aspersions were cast regarding the respectability of victims in the late-nineteenth century (recall the ‘low character’ of Ada Hatton and Annie Thornton), these comments were often brief and peripheral to arguments for diminished responsibility of the perpetrator. The case of Margaretta Williams presents a turning point. Finding that her old English lover William Carr had travelled to Australia to be with her, she allowed him to stay with her in Melbourne until, after weeks of Carr struggling to find employment, she fixed him work with her brother in Wonthaggi.81 After working there for some time, Margaretta visited and stayed with her brother John, his wife Elsie, their young child and Carr. ‘If this job turns out alright, will there be any chance for me making it up?’ Carr asked Margaretta one morning in the kitchen, with Elsie overhearing. ‘No Billy, you and I are finished, you will soon forget me and get somebody else’, Margaretta had allegedly replied. ‘I will never get anyone else.’ When Elsie returned to the room minutes later, she found Margaretta lying on the floor, her throat slashed with a knife. When questioned later by police, Carr explained: ‘I don’t know why I did it. I was a bit jealous’. Every subsequent question was answered with the same words: ‘I love my Mag’.82 79 R v Boles (1933) VPRS 264 P0001/11. Catriona Elder specifically includes depictions of female mechanics in her discussion of the New Woman of the interwar period. Elder, ‘The question of the unmarried’: Some meanings if being single in Australia in the 1920s and 1930s,’ Australian Feminist Studies 8, 18 (1993): 156. 80 Elder, ‘The question of the unmarried,’ 154. 81 R v Carr (1928) VPRS 264 P0001/8. 82 Trial transcript, R v Carr (1928) VPRS 264 P0001/8. 184 Not only did Carr claim to have no memory of his time with Margaretta at Wonthaggi, but he and his relatives painted a picture of Margaretta as a cold, exploitative modern woman. Liz Conor has investigated the trope of the urban ‘New Woman’ of 1920s Australia, often portrayed as single, self-confident, financially independent and aware of her own sexual power that could be harnessed to reap rewards both in the workplace and in her personal life.83 Having been inadmissible at trial due to conjecture, these qualities were negatively attributed to Margaretta Williams posttrial. Henry John Ham, gaol chaplain who spoke to Carr in prison, argued in a lengthy petition that: ...the girl treated him very badly, so badly indeed that if the full revelation of her badness came to him for the first time on that day, it could be readily understood that the horror and despair rendered him for a moment, insane.84 Henry Ham and others signalled that Margaretta’s alleged ulterior motives concerned money; she had supposedly only found Carr employment in the country so she could continue to ‘have a good time’ in the city.85 Carr had testified that Margaretta sought to exploit him for money, explaining that she had written a letter to her friends the day before she was murdered that urged them to travel to Wonthaggi ‘as soon as possible, as the boys were spending their money freely and they, the girls, could get anything they wanted’.86 This letter, thought by Ham and others to be the reason for Carr’s act, was never found. Carr’s brother wrote several heated letters from England, confirming that ‘the victim may have been capable of saying or doing anything, and most of all 83 Connor, The Spectacular Modern Woman, 46-76. Petition from Henry John Ham to the Attorney General, 14th Dec 1928. R v Carr (1928) VPRS 264 P0001/8. 85 Memorandum for the Chief Commissioner of Police, 11th Dec 1928. R v Carr (1928) VPRS 264 P0001/8. 86 Underline in original. Memorandum for the Chief Commissioner of Police, 11 th Dec 1928. R v Carr (1928) VPRS 264 P0001/8. 84 185 playing with a man’s affections’.87 Margaretta and her young, single female friends epitomised the cold, urban flapper who used men to their own sexual and financial advantage. The law and the press took this portrayal of the victim seriously. Following the statements of Carr, his brother and Henry Ham, the Attorney General requested that police furnish a report in reference to Margaretta’s character.88 Margaretta’s three closest female friends testified that ‘she did not flirt with boys’, she ‘never made free with men’, had never been seen with a man other than Carr and ‘at all times behaved herself’, in an effort to restore their friend’s character in the eyes of the law.89 Nevertheless, the press had already pounced on the characterisation of Margaretta as a ‘cold’ woman and Carr as her ‘rejected lover’.90 This was the first case in the sample of convicted femicides to publish a photograph of the victim in the press.91 Carr did receive clemency in the form of a commuted death sentence, yet in an ironic turn of events, medical staff certified him as ‘insane’ ten years into his life sentence and moved him to Ararat prison’s ‘J’ Ward for the criminally insane, in what Carr would later protest was an official move to prevent him from lodging to appeal his case.92 87 Letter from W. S. Carr to the Attorney General, undated. R v Carr (1928) VPRS 264 P0001/8. Memorandum for the Chief Commissioner of Police, 11 Dec 1928. R v Carr (1928) VPRS 264 P0001/8. 89 Interviews with Miss Lalla Adamson, Miss Millie Bones and Miss Mary Tweedy, 12 Dec 1928. R v Carr (1928) VPRS 264 P0001/8. 90 ‘Wonthaggi Murder: Rejected Lover’s Act’, Age, 12 Oct 1928, 11; ‘Wonthaggi Murder Case’ Geelong Advertiser 30 Nov 1928, 1. 91 Taken from the 92 cases of male-perpetrated homicide convicted in Victoria between 1880-1939. VPRS 264 & VPRS 1100. 92 Carr was only released in 1977, signalling the gravity with which cases of criminal insanity were handled in the twentieth century in comparison with the nineteenth. Letter from William Carr to the Attorney General, Jan 1950. R v Carr (1928) VPRS 264 P0001/8. 88 186 Figure 1. Photograph of Margaretta Williams, Herald 11 Oct 1928, 7, also printed in the Weekly Times 20 Oct 1928, 9. Figure 2. A contemporary cartoon depicting the New Woman at work. Reginald Walter Coulter, printed in the Bulletin 14 Nov 1928. Alongside anxieties regarding feminine independence in romantic relationships, fears surrounding employment and fulfilling the role of masculine provider also contributed to conceptualisations of criminal insanity. William Carr viewed employment and financial security as the means to securing a romantic reconnection with Margaretta Williams, and Carr’s mother and brother pleaded for his commutation in letters to the Governor, promising that they would ‘put him to work’ if he was deported back to England.93 As Janet McCalman wrote in her oral history of the depression years in Richmond, ‘when a man failed to provide, it was a sexual as well as a material failure’.94 A woman who McCalman interviewed recalled her uncle bending over and crying, saying to her, ‘this is bloody degrading, to think a man’s willing to work and can’t get it’.95 93 R v Carr (1928) VPRS 264 P0001/8. McCalman, Struggletown, 194. 95 McCalman, Struggletown, 188. 94 187 The case of John Boles, a gardener who lost employment in 1933 and struggled to find work thereafter, encapsulated the extreme of this shame. John Boles had found love with a mistress, a machinist named Kathleen (Kittie) Dorman. The twin burdens of providing for his wife and four children and saving to start a new life with Kittie saw him suffer from ‘severe nervous and emotional strain.’96 John Boles addressed the court with testimony the press enthusiastically printed verbatim: I was driven to the verge of frenzy by the prospect of my children not having enough to eat, and the shattering of all my hopes. I could not eat or sleep.97 Boles explained that ‘something snapped inside him’ and he had no recollection of battering Kittie with a gardening tool.98 Dr Godfrey, medical witness for the defence, confirmed that Boles’ powerful love for his mistress, the unexpected situation of unemployment and ensuing depression, sleeplessness and contemplation made possible an uncontrollable impulse to kill. The jurymen viewed Boles’ plight with sympathy, recommending him to mercy on account of previous character and ‘the great mental strain under which he was suffering when he committed the act.’99 On this basis the Executive granted Boles a commuted life sentence. Though the ideal of the stoic male breadwinner only increased in the interwar years and into mid-century, Boles’ case suggests that mental strain continued to foster sympathy for men who, under financial pressure, killed intimate partners or families.100 Just as the nature of romantic relationships, gender roles and financial circumstances took on new meaning in the 1920s and 1930s, the language with which ‘Sentenced to death,’ Argus, 27 Sep 1934, 11. Trial transcript, R v Boles (1934) VPRS 264 P0001/11; VPRS 1100 P0002/6. See ‘Sentenced to death,’ Argus, 27 Sep 1934, 11; ‘Dramatic Story by Boles to Jury,’ Herald, 26 Sep 1934, 5. 98 Trial transcript, R v Boles (1934) VPRS 264 P0001/11. 99 Court trial transcript, R v Boles (1934) VPRS 264 P0001/11. 100 See Johnny Bell, ‘A Cultural History of Fatherhood in Australia, 1920-1980,’ (PhD dissertation, Monash University, 2017); Johnny Bell, ‘Putting dad in the picture: Fatherhood in the popular women’s magazines of 1950s Australia,’ Women’s History Review 22, 6 (2013): 904-929. 96 97 188 insanity was explained in criminal cases was also changing. Men convicted of murdering loved ones were no longer attributed with the temporary fits of insanity, involving blank minds and memory loss that had characterised the nineteenth and early twentieth century. While mainstream psychiatry was generally dismissive of Sigmund Freud, the criminal courtroom increasingly witnessed the language of psychoanalysis. In accounting for William Carr’s memory loss, Dr George Godfrey explained that the defendant had ‘subconsciously or unconsciously repressed the memory of every incident associated with the crime or the girl.’101 Ten years later, the medical officer at Pentridge Prison reported that Carr’s ‘mental makeup’ was ‘really due to the repressed knowledge that inwardly he is of little worth’.102 Legal actors, doctors and jurors also implied the unconscious when they spoke of an uncontrollable ‘impulse’, such as that John Boles had allegedly succumbed to in 1933. Though no formal insanity defence was brought in the case of Arthur Kotsiakos in 1927, the jury recommended him to mercy for acting under an ‘emotional impulse’.103 This linguistic shift in how people described mental aberration and loss of control is significant in demonstrating the inroads of psychoanalytic theory both in the criminal law and in public parlance. This is not to say that the majority of jurors, judges, lawyers and doctors were advocating Freud’s theories or even engaging with them intellectually. From 1911, the year Sigmund Freud and Carl Jung sent papers to be presented at the Ninth Session of the Australasian Medical Congress held in Sydney, Australian newspapers printed explanatory pieces on Freud’s work to a wider 101 Testimony of George Godfrey, Trial Transcript, R v Carr (1928) VPRS 264 P0001/8. R v Carr (1928) VPRS 264 P0001/8. 103 Trial transcript, R v Kotsiakos (1927) VPRS 264 P0001; ‘Divorced Husband’s Jealousy,’ Age, 28 Apr 1927, 11. 102 189 audience.104 For example, a local newspaper in rural northern Victoria set out the ‘unconscious’ in basic terms for readers.105 Joy Damousi details how Freudian concepts such as ‘repression’ and ‘the unconscious’ slipped into modern frames of reference for the self.106 These terms, when applied in public discourse and legal usage, were often quite divorced from their original, complex meanings in Freud’s works. As we will see in the following section, legal adoption of concepts such as Freudian ‘impulse’ operated outside of their intellectual origin with no reference to Freud’s accompanying framework of the ‘Id’, the ‘Ego’ and the ‘Superego’.107 Rather, the public (nonspecialist) use of these terms formed part of a broader discursive culture that attached new understandings to ideas of criminality. This was the era that saw ideas of criminality shift even further to the level of the micro: the individual. Though individuals had been tried for crimes for centuries, the late nineteenth century saw the attempt to categorise groups of criminals into a degenerate criminal ‘class’ or into groupings of family-based hereditary criminals who fell under the varied and overlapping criminal categories of ‘homicidal monomaniacs’, ‘puerperal maniacs’ and so on. Each member of such groupings possessed similar symptoms and characteristics. The interwar period, with its ‘eclectic circulation’ of Freudian theories in popular culture and the emerging sciences, honed in on the individual and the unique drives, impulses, upbringings and memories that created each Robert Kaplan, ‘Freud’s excellent adventure Down Under: The only publication in Australia by the founder of psychoanalysis,’ Australasian Psychiatry 18, 3 (2010): 207; ‘Dreams,’ The Advertiser (SA), 28 Jan 1913, 14; ‘Recent Literature,’ The Herald, 3 June 1919, 3; ‘World-Wide Thought,’ Prahran Telegraph, 5 Jul 1919, 5; ‘Fathers and Sons,’ The Age, 4 June 1921, 22; ‘Psychology,’ The Age, 18 June 1921, 22; ‘Does the Psycho-Analyst Hold Nature’s Key?,’ The Herald, 27 May 1922, 6. 105 ‘The Lowest Chamber of the Soul,’ Kerang New Times, 22 Sep 1911, 6. Also printed in the Traralgon Record, 22 Sep 1911, 5 and the Ovens and Murray Advertiser, 23 Sep 1911, 5. 106 Joy Damousi, Freud in the Antipodes (Sydney: University of New South Wales Press, 2005), 78, 156. 107 Sigmund Freud, The Ego and the Id (Vienna: Internationaler Psycho-analytischer Verlag, 1923). 104 190 criminal.108 Doctors explained that Carr and Boles had been driven to kill by repressed emotions and in turn jurors started to accept the unconscious as an explanatory tool.109 Whether the focus on individual pathology increased or decreased sympathy for defendants remains in question. The rise of medico-legal jurisprudence in the twentieth century through the eventual codification of disorders and mental pathologies, focussed attention on the offender and away from the structures of gender, class and power that created the space for violence, particularly family violence.110 Blame was easily and efficiently dealt to the pathological offender who was seen as a neat product of his or her faulty upbringing. Carr’s case inspired a rare anonymous letter to the Governor petitioning for his execution, arguing that if he were spared he would remain a danger to young women.111 In contrast, the Socialist Party of Victoria, the Labor Party, Trades Hall Council and the Women’s International League of Peace and Freedom expressed their support for Carr’s mercy, the Socialist Party strongly advising that ‘the State’s attitude at all times should be anti-crime rather than anti-criminal.’112 What is clear is that the ‘unconscious’ further muddied questions of criminal responsibility. While the extension of mercy to offenders remained a divisive and political issue, these cases do reveal something of an (unconscious) public push for the legal recognition of Freudian concepts. This can be seen in the case of Kotsiakos, specifically in the jury’s exercise of power. After four hours deliberation, the jury returned and 108 Damousi, Freud in the Antipodes, 156. However, they did not go so far as to suggest there were sexual impulses at the heart of these crimes—only digestible emotions such as ‘love’, ‘jealousy’ or ‘frustration’. Trial transcript, R v Carr (1928) VPRS 264 P0001/8; R v Boles (1933) VPRS 264 P0001/11. 110 Allen, ‘The invention of the pathological family,’ 21. 111 Anonymous to the Governor, 19 Dec 1928, R v Carr (1928) VPRS 264 P0001/8. 112 Letter from the Socialist Party of Victoria to the Attorney General, 22 Dec 1928. The Socialist Party, Labor Party, Trades Hall Council, Society of Friends, Social Improvement Society for the Australian Church and Women’s International League of Peace and Freedom formed a deputation to the Attorney General in late December 1928, arguing for mercy on the grounds that capital punishment was antiquated and unjust. ‘Deputation Pleads for Carr’s Life,’ Herald, 17 Dec 1928, 23. 109 191 asked Chief Justice Irvine whether they could add a recommendation to mercy in their belief that the ‘accused acted under an emotional impulse’.113 Irvine replied that insanity had not been argued as a defence in the trial, and there was no evidence to uphold it. After retiring once more, the jury returned and persisted with their recommendation.114 The popularity of the ‘impulse’ concept among jurors was arguably due to the ease with which public understandings of the unconscious could be applied to criminal cases. ‘Irresistible impulse’ as a cultural term applied the same exculpatory logic as provocation, just as ‘temporary insanity’ had in male-perpetrated murder trials the late nineteenth century. However, where ‘temporary insanity’—its biological or psychological origin or symptomology— could not be adequately explained by the incongruous and disparate medical theories of psychiatrists in the nineteenth century, unconscious impulses could be explained by twentieth-century psychoanalysts. Despite the currency of the idea among jurors, unconscious impulse could not be considered legally within the stringent M’Naghtan rules, and it is likely this is the very reason the jury asked whether they could refer to ‘impulse’ in R v Kotsiakos. Determining whether a defendant was so insane as to not know what he was doing, or not know that it was wrong was difficult; judging whether his body acted without the conscious assent of his mind seemed easier. The state of the profession: Psychiatry in the 1930s The receptiveness to psychiatry and psychology in Victoria’s medical, legal and public spheres in 1939 stood in stark contrast to the medico-legal approaches in 1914, and 113 114 Trial transcript, R v Carr (1928) VPRS 264 P0001/8. R v Kotsiakos (1927) VPRS 264 P0001/8; ‘Divorced Husband’s Jealousy,’ Age, 28 April 1927, 11. 192 dramatically so in comparison to 1880. Criminal trials of the period from 1914 do not adequately reflect the professional development of the field; there is little evidence to show that Australian psychiatrists were more than acquiescent in their work in criminal trials, with some even refusing to offer testimony until they received payment upfront.115 Nevertheless, by the 1930s psychiatrists had gained a foothold as respected practitioners. ‘Civilisation becomes more and more complicated every year and brings fresh mental problems’ a prominent psychiatrist told an interviewer for the Weekly Times, and this was felt keenly by a populace who now looked to the doctors in his field for guidance in raising their children, in explaining serious crime and in protecting their communities—for the focus was now more than ever on community protection, rather than care for the seriously mentally ill.116 The advent of Freud’s psychoanalysis and other forms of psychology (that is, behavioural and cognitive studies of the mind) had given rise to a new field of self-professed experts that traditional psychiatrists could readily distance themselves from and point to as quacks. 117 However, the interwar years and their attendant feeling of insecurity opened up society to all manner of psychiatric and psychological solutions to the problems put forward by Francis Galton and Cesare Lombroso in the late-nineteenth century. The separate but often overlapping mental hygiene and eugenics movements found root in Australian soil with the (short-lived) formation of the Public Health Association (192024), the Victorian Council for Mental Hygiene (est. 1930) and the Eugenics Society of 115 When Dr Maurice Gamble found out he would not be paid until a later date, he walked out of the courtroom. ‘Lost His Nerve in an Accident,’ Argus, 12 Jul 1939, 3. 116 ‘Mental Cases,’ Weekly Times, 16 Sep 1933, 18; Milton Lewis, Managing Madness: Psychiatry and Society in Australia 1788-1980 (Canberra: Australian Institute of Health, 1988), 41. On guidance with child psychology see ‘Child Guidance,’ Argus, 11 Oct 1932, 7; ‘Child Problems,’ Age, 23 Mar 1939, 4. 117 ‘Mental Cases,’ Weekly Times, 16 Sep 1933, 18; ‘Work and Aims of the Victorian Council for Mental Hygiene,’ Labor Call, 16 May 1935, 15. 193 Victoria (est. 1936).118 These associations emphasised the importance of mental health in society, and while psychiatrists lent their voice within these groups, doctors found their territory claimed by a new throng of ‘experts’ in the management of public health: general practitioners, child welfare specialists and educators.119 Psychological theories quickly pervaded the education sector, where state testing of schoolchildren sought to measure levels of intelligence and identify any ‘feeble-minded’ children. A psychological laboratory was established at the Melbourne Teachers College in 1923 to generate scientific findings relating to teaching.120 The Victorian Council for Mental Hygiene worked closely with the newly established Victorian Vocational and Child Guidance Centre on Flinders Street, a place where parents or teachers having trouble with ‘difficult children’ could seek advice from both psychologists and psychiatrists. 121 The practice of psychiatry itself looked very different by the 1930s. The vocation had splintered from the narrow positions of asylum doctor or Government Medical Officer that had defined the profession in the nineteenth century, fanning out with a flourishing of private practice, positions in government health departments, educators at the University of Melbourne or in-hospital consultant positions at the Alfred Hospital and the Melbourne Hospital.122 Patients were now streamlined into private practice or institutions depending on the severity of their mental illness. The stigma of the lunatic asylum (now referred to as the mental hospital) had arguably worsened with the emphasis that only extreme cases needed institutionalisation, and the 118 See ‘The Public Health Association,’ Medical Journal of Australia vol. 1 (June 1921), 465-6; ‘Mental Hygiene,’ Age 3 May 1930, 24; Reiger, The Disenchantment of the Home 168-9. 119 Stephen Garton, ‘Sound Minds and Healthy Bodies: Reconsidering Eugenics in Australia, 19141940,’ Australian Historical Studies 16, 103 (1994): 163-181. 120 David McCallum, ‘The Theory of Social Differences in Early Twentieth Century Education in Victoria,’ Discourse 5, 1 (1984): 33-35. The findings of the laboratory were published in the Australian Journal of Psychology and Philosophy. 121 ‘The Work and Aims of the Victorian Mental Hygiene Council,’ Labor Call, 16 May 1935, 13. 122 Lewis, Managing Madness, 37. 194 gradual acceptance that it was common for the ordinary man or woman to suffer from a bout of what some called depression and others still called melancholia.123 Most psychiatrists practiced the traditional ‘organic’ psychiatry inherited from England, with a focus on physical cures such as insulin, cardiazol or malaria. The late 1930s and 1940s would see the development of electric convulsive therapy (ECT), lobotomies and the Australian psychiatrist John Cade’s discovery of lithium, the first effective medication to stabilise mood disorders.124 The most striking aspect visible in the criminal trials of this period was the ascent of psychological and psychoanalytical explanations for human behaviour. Psychoanalysis remained a small field in Victoria until the wave of migration during the Second World War brought analysts from Germany, Austria and Hungary to Melbourne. Psychiatrists were quick to reject psychoanalysis in its earliest forms, yet the period 1914-1939 saw psychoanalytic theories regarding repression, the unconscious, child development and sexuality flourish in mainstream psychology as well as in everyday life.125 Reginald Ellery, one of Melbourne’s first analysts, mused that the hostility to psychoanalysis lay in the way it ‘blurred the distinction between the normal and the abnormal’ and complicated the nineteenth-century categorisation of the insane as being fundamentally different to the sane.126 The criminal trials discussed in this chapter suggest that jurors found psychoanalytic concepts accessible, likely due to the way in which everyday people were fast conceiving of their own worlds in terms of impulses, drives and inclinations. This was a period where such concepts converged in a booming advertising industry promising all manner of goods were beneficial to the ‘The Work and Aims of the Victorian Mental Hygiene Council,’ Labor Call, 16 May 1935, 13. Lewis, Managing Madness, 55-56. 125 Damousi, Freud in the Antipodes, 78, 156. 126 Reginald Ellery, ‘Psycho-Analysis and the Worship of Baal in 1928,’ Medical Journal of Australia (8 September 1928): 33-4. 123 124 195 mind, and the modernist movement in which authors and artists explored the richness of the interior self.127 Watershed: Sodeman (1936) and Irresistible Impulse While a majority of crimes perpetrated against strangers, male or female, were done so as a result of quarrel or in pursuit of money, the crimes of Arnold Sodeman represented a fear-inducing departure from the norm. Sodeman was arrested in December 1935 for the murder of six-year-old June Rushmer in Leongatha. Rushmer’s body was found in bushes leading to the local sanitary depot, her hands tied behind her back, her bloomers stuffed into her mouth and suffocation the cause of death. On arrest Sodeman confessed to attacks he committed on three other girls in different parts of the state during the years 1930-1931: Mena Griffiths, aged twelve, was found in a vacant brick house in Ormond, Hazel Wilson, sixteen, was found in an empty allotment in Ormond and Ethel Belshaw, twelve, was found in a patch of beach scrub in Inverloch in 1935.128 Each girl was found the way June had been: hands tied behind her back and underwear in her mouth. Sodeman was not known to any of the girls, and only Mena Griffiths showed evidence of sexual assault.129 Sodeman’s crimes signaled the possible threat of strangers in an era increasingly concerned with the welfare of children. Each girl had been out exercising relative freedom when Sodeman approached her: Mena had been at a playground with her sister, Hazel walking a friend to the train station, Ethel wandering around the beach and June Robert Kaplan, ‘Reg Ellery and the Establishment of Psychoanalysis in Australia,’ Health and History 17, 1 (2015): 37-52. 128 These crimes were committed in 1930, 1931 and 1935 respectively. Trial transcript, R v Sodeman (1936) VPRS 264 P0001/11; VPRS 1100 P0003/3. 129 Trial transcript (testimony of Government Medical Officer) R v Sodeman (1936) VPRS 264 P0001/1. 127 196 walking home for dinner. Three of the murders had occurred between seven and nine o’clock at night. Sodeman was a stranger who appeared to choose victims at random— albeit within the same demographic— and in this he represented an unpredictable danger. At Sodeman’s trial for murder, Justice Duffy conceded to jurors that the defendant appeared to be ‘a man not moved by normal passions’.130 Duffy told jurors that they may be able to understand and, at a base level, even empathise, with ‘a man who kills a woman who resists his sexual advances, a man who kills in anger, a man who kills for gain’, yet Sodeman’s crimes did not fall into these categories.131 In police interviews Sodeman depicted each girl as having brazenly struck up conversation with him, asking for cigarettes, for a ride, asking whether he danced.132 By the 1940s, police were teaching Australian school children not to talk to strangers between school and home due to fears of sexual and violent crime.133 130 Trial transcript, R v Sodeman (1936) VPRS 264 P0001/1. Trial transcript (Judge’s charge) R v Sodeman (1936) VPRS 264 P0001/11. 132 Confession of Sodeman read to court, R v Sodeman (1936) VPRS 264 P0001/11. 133 ‘Children Taught Not to Speak to Strangers,’ Warwick Daily News (Qld.), 15 Jul 1946, 2. Article mentions initiatives of Sydney police. 131 197 Figure 3. Local residents outside the courthouse at Leongatha on the day Sodeman was arrested for June Rushmer’s murder. Public Record Office of Victoria. While the trials of Kotsiakos, Carr and Boles demonstrate the increasing popular currency of ‘impulse’ in criminal proceedings, Sodeman’s trial was one of the earliest to literally stage the confrontation between psychoanalysis and the law. His was the first case of convicted murder in which a psychoanalyst testified as a medical witness, signifying a broadening in who was considered an ‘expert’ in the area of mental states. 134 Reginald Ellery was a Collins Street psychiatrist who quit his position at the Alfred Hospital in 1933 to open the first private ‘psychopathic hospital’ in Victoria. His interest in schizophrenia took him to the Soviet Union and elsewhere in Europe during 134 J. Ackeroyd, Report of the Inspector-General of the Penal and Gaols Department, R v Sodeman (1936) VPRS 264 P0001/11. 198 the mid-1930s, entertained on one occasion by Anna Freud at her home in Vienna. Returning to Melbourne, he would establish the Melbourne Institute of Psychoanalysis in October 1940 and work alongside another influential Melbourne analyst, Dr Paul Dane.135 At trial, he explained Sodeman’s crimes as the product of ‘obsession’, a diagnosis that sat uncomfortably with the legal standard for insanity. Ellery and the other two psychiatrists who testified at trial submitted that Sodeman’s obsessional ‘impulse’ lay dormant until he was uninhibited by a substance such as alcohol, which on consuming, he compelled him to act unconsciously with no knowledge of his own acts. Ellery confirmed his was a ‘homicidal obsession’, while Dr Raymond Allen agreed it was a ‘killing instinct’ and the third doctor, Government Medical Officer Albert William, characterised it as ‘this impulsive idea to do a thing always in one fashion’, referring to the identical method used to kill each victim.136 Ellery located impulse in Sodeman’s ‘subconscious’, unlocked by liquor that Sodeman allegedly consumed prior to each murder—though witnesses confirmed this in only in two of the four murders.137 Mr. Bourke, counsel for the accused, argued that even if Sodeman understood the wrongness of his acts, it was the lack of control rendered by his condition or ‘impulse’ that made him not responsible. Dane described Sodeman’s condition as ‘neuropathic tendency’.138 Others deployed Freudian theories of development in early childhood to the Sodeman case. The Inspector-General of the Penal and Gaols Department, J. Ackeroyd, argued that it was actually Sodeman’s childhood and ‘defective’ upbringing that led to Damousi, Freud in the Antipodes, 158, 184-191. Sebastian Gurciullo, ‘Ellery, Reginald Spencer (1897-1955),’ Australian Dictionary of Biography vol. 14 (Melbourne: Melbourne University Press, 1966.) For more on Dane, see Damousi, ‘Australian Medical Intellectuals and the Great War,’ 449. 136 Trial transcript, R v Sodeman (1936) VPRS 264 P0001/11. 137 R v Sodeman (1936) VPRS 264 P0001/11. 138 Trial transcript, R v Sodeman (1936) VPRS 264 P0001/11. 135 199 his crimes. Ackeroyd theorised that Sodeman felt ‘an urge to re-enact... a series of scenes that took place between his father and mother or between himself and his father when he was a very young child’. Sodeman’s recollections, told to Ackeroyd in prison, divulged how his father enacted physical violence onto himself, his mother and brother. Karl Sodeman would grab Arnold and his brother; he would hit his wife until her nose bled, or held her by the throat.139 Either in earnestness or knowing it would aid his case, Sodeman told Ackeroyd that when he got drunk as a teenager ‘thoughts would go through my mind concerning men women and children whom I disliked’, and he would feel a strong urge to hurt them.140 Ackeroyd’s analysis shows how theories of familial relationships were coming to define mental health—not simply through inherited traits, but through interaction and taught behaviour. As a Dr Bostock outlined to fellow members of the medical profession in 1929, the young brain was the most malleable and ‘harsh or too indulgent or ignorant or selfish parents mould the little mind into faulty grooves’.141 Historians Kerreen Reiger and Johnny Bell outline the mounting expectations of both mothers and fathers to take responsibility for their child’s mental and emotional development during the interwar years.142 Sodeman’s case presented a warning to parents who did not abide by the new rules of parenting, both in the lack of sensitivity that could create psychopathic sons and the lack of supervision that could see harm come to neurotic daughters. 139 J. Ackeroyd, Report of the Inspector-General of the Penal and Gaols Department, R v Sodeman (1936) VPRS 264 P0001/11. 140 Interview between Sodeman and Ackeroyd, 9 Dec 1935 R v Sodeman (1936) VPRS 264 P0001/11. 141 J. Bostock, ‘Mental Hygiene,’ Trans. Australian Medical Congress, 1929, 302. 142 Kerreen M. Reiger, The disenchantment of the home: modernizing the Australian family, 1880-1940 (Oxford: Oxford University Press, 1985), 153-171; Johnny Bell, ‘Needing a woman’s hand: Child protection and the problem of lone fathers,’ History Australia 9, 2 (2012): 90-110. 200 The amount of medical testimony at trial devoted to explaining Sodeman’s repressed ‘impulse’ was met with vexation from the prosecution and Justice Duffy, who saw the medical witnesses as trying to push against the confines of the M’Naghten rules. The Crown prosecutor, Mr. Book, attempted to discredit the argument that Sodeman had no knowledge of his actions by methodically going through the accused’s lengthy and detailed recollections of each murder. ‘Sodeman stated that he rode his bicycle at about seven o’clock that evening’, Book put to one of the doctors, ‘was he conscious of the fact that he was riding his bicycle?’ Was he conscious when he was running toward the young girl, and when he caught her around the neck?143 Through this line of questioning, Book exposed to the jury the limits of medical knowledge in accounting for the mental state that accompanied each action of a crime. In a private discussion, Sodeman’s defence counsel asked Chief Justice Duffy to put to the jury that the defence had satisfied the onus of proving that the accused had been insane and to acquit on this ground, a request that Duffy declined. In his charge to the jury, Duffy outlined the M’Naghten rules—that a man, labouring under mental disease needed to not know what he was doing, or not know that what he was doing was wrong, at the time of the crime— and that ‘Dr Ellery at any rate goes this step further’ in arguing that a mere obsession could make a man not know the quality of his act.144 This unfavourable charge secured a conviction with no recommendation to mercy. The afterlife of Sodeman’s case impacted the course of Australian jurisprudence. Sodeman appealed to the Court of Criminal Appeal of Victoria on the point that Justice Duffy had misled the jury on the point of insanity, and through a divided judgment, the case reached the High Court of Australia. The application of 143 144 Cross examination of Dr Philpot, Trial transcript, R v Sodeman (1936) VPRS 264 P0001/11. Judge’s charge, trial transcript, R v Sodeman (1936) VPRS 264 P0001/11. 201 Sodeman’s lawyer, Mr. Bourke, to the High Court was a denunciation of the rigid and outdated application of M’Naghten’s case—in 1844 the Privy Council were addressing delusional insanity only, leaving no room in the law for consideration of modern notions such as ‘irresistible impulse’.145 The High Court justices were equally divided on this point, with Justices Latham and Stark ruling against the appeal, and Justices Dixon and Evatt ruling for. Dixon and Evatt remarked that modern science demanded an expansion of M’Naghtan, with Evatt writing that ‘it is quite out of accord with modern research in psychology to assert an absolute gap between cognition and conation.’146 However, much like the popular counterpart, the definition of ‘irresistible impulse’ among the High Court Justices again evolved separately from its intellectual origins in Freud’s works.147 The legal definition of ‘irresistible impulse’ that arose in the Sodeman appeal case and was eventually incorporated into Australian criminal law in 1950 simply meant ‘an involuntary inclination to act due to mental illness’, with no references to Freud’s theory of unconscious impulses.148 Sodeman’s case proceeded to the Privy Council, where another even tie between the four judges resulted in the restoration of his conviction. Where cases of insanity in Victoria’s past had elicited deputations from the medical profession, a shift can be perceived in the twenty-five members of the legal profession who attempted to persuade the Executive Council to reprieve the prisoner, to no avail.149 Sodeman was executed in June 1936, and a post-mortem examination 145 Sodeman v R [1936] HCA 75; 55 CLR 192 (2 April 1936). 55 CLR 192 (2 April 1936). 147 Freud’s theories regarding human ‘impulses’ and ‘instincts’ developed in Freud, Beyond the Pleasure Principle (Vienna: International Psycho-Analytic Press, 1922). See also Freud, The Ego and the Id, 1923. 148 LexisNexis, Encyclopaedic Australian Legal Dictionary (at 12 April 2019), ‘Irresistible impulse’; O’Neill v The Queen (1977) 141 CLR 496; Attorney-General (SA) v Brown [1960] AC 432. 149 Members of the Legal Profession of Victoria Deputation to the Premier, March 1936. R v Sodeman (1936) VPRS 264 P0001/11. 146 202 revealed his brain was congested in a way that could ‘cause mental disturbances of various kinds.’150 By 1937, Sodeman’s brain had been acquired by Sir Colin McKenzie of the Institute of Anatomy in Canberra.151 An enduring interest in Sodeman has since led one of Australia’s leading forensic experts, Ian Joblin, to argue that were Sodeman arrested today, he would be judged unfit to stand trial.152 In 1937, Justices Dixon and Evatt requested copies of the post-mortem examination that would undoubtedly inform their future implementation of law to questions of insanity. Justice Owen Dixon was an influential advocate for a wider application of M’Naghten.153 His judgment in R v Porter (1933) clarified how the M’Naghten rules were to be adopted in Australian courts, in particular in arguing that ‘knowing right from wrong’ should be defined as common knowledge, what a reasonable man would know was wrong, as opposed to what was legally wrong. Dixon’s subsequent judgment in Sodeman v the King advocated for the accommodation for ‘irresistible impulse’ in the condition for ‘knowing’ between right and wrong that established a uniquely Australian judicial precedent.154 Though Dixon’s interpretation of legal insanity would continue to be quashed by the higher power of the English Privy Council until the case of AG (SA) v Brown (1960), the importance of R v Sodeman in calling for a uniquely Australian approach to legal insanity cannot be understated. 150 Herald clipping included in the case files of the Executive, 2 June 1936, R v Sodeman (1936) VPRS 264 P0001/11. 151 Secretary to the Law Department to the Principal Registrar of the High Court of Australia, 2 Apr 1937, R v Sodeman (1936) VPRS 264 P0001/11. 152 Russell Robinson, ‘Serial killer Arnold Sodeman would have been unfit to stand trial says forensic expert,’ Herald Sun, 19 Mar 2012. 153 Mark Finnane, ‘Irresistible Impulse: historicizing a judicial innovation in Australian insanity jurisprudence,’ History of Psychiatry 23, 4 (2012): 454- 468. 154 C R Williams, ‘Development and Change in Insanity and Related Defences,’ Melbourne University Law Review 24, 3 (2000): 711. 203 Conclusion Reginald Ellery wrote in 1956 that ‘modern psychiatry was born in the shell craters of Flanders’, a quote that historians continue to invoke with good reason.155 The First World War established psychiatry as a legitimate field of expertise requiring funding and attention in Australia that lent psychiatrists a platform they had never previously been offered. However, the capital convicted trials of returned serviceman featured surprisingly little consultation with doctors and psychiatrists. Public voices were content in determining war-induced insanity in these trials, their readings informed by perceptions of war service, masculinity and the sexual politics of the period. The same phenomenon can be seen in criminal trials during the interwar years. The changing relations between the sexes in the interwar period witnessed male retaliation to women who embodied the geographical, financial and social freedoms associated with the ‘New Woman’ archetype. Psychological frames of reference to repression, the unconscious and impulse effectively solicited sympathy for male defendants in these cases, particularly where they previously demonstrated ‘love’ for their victim or were plagued by financial worry in the depression years. The public and legal popularity of ‘impulse’ as a framework of diminished responsibility culminated in the High Court judgments of Sodeman that sought to include ‘irresistible impulse’ in the assessment of legal insanity in Australia. The case of Sodeman provides a watershed moment in that it was not merely doctors, but judges and a deputation of twenty-five lawyers who petitioned to allow for ‘impulse’ and by extension, the widening of the M’Naghtan rules. This was a first 155 Reginald Ellery, The Cow Jumped over the Moon: Private Papers of a Psychiatrist (Melbourne: FW Cheshire, 1956), 88. See Macleod, ‘Australasian contributions to the ‘shell shock’ literature of World War I,’ 398; Damousi, ‘Australian Medical Intellectuals and the Great War,’ 436; Robert Kaplan, ‘Psychiatric gadfly: In search of Reginald Ellery’ Australasian Psychiatry 20, 1 (2012): 11. 204 glimpse of the meeting of psychiatric and legal aims that would come characterise the following decades of the twentieth century. In addition, the medical testimony offered in the trials of Carr, Boles and Kotsiakos would come to shape twentieth-century understandings of criminality, proffering up the idea that each individual was a unique product of his or her heredity, environment and, most importantly, upbringing, that shaped crucial drives, repressions and personality types. Psychiatrists, lawyers and the broader public were turning to the formative period of childhood to understand criminal behaviour, a shift that was more pronounced in the trials of sexual offenders that the following chapter will examine. 205 Chapter Six ‘Animal Passions’ to ‘Sex Cranks’: The Pathology of Sexual Offences The capital sex crimes of rape, buggery and carnal knowledge of a minor struck at the heart of colonial anxieties in the late-nineteenth century. That these crimes caused deep concern regarding the morality of the settler populace was not new: efforts to lessen the crimes of rape and sodomy among convicts characterised the earliest period of British colonial governance in Australia.1 The specific anxieties of the late-nineteenth century differed in their preoccupation with the racial fitness and moral integrity of colonial citizens, particularly the working classes and especially working-class youth. The frequent lamentations of judges in sexual offence trials conveyed the perception that the crime was not uncommon in the colonies, and an apprehension that this was reflective of a great national flaw.2 It was in this period that the educated middle-class sought medical answers to understand and control sexual crime. This chapter aims to bring mental health into the frame of the historical inquiry into sexual offences. It is perhaps due to the infrequency of the insanity defence in these trials that ideas of mental health appear as a peripheral element in historical studies of the subject. The Frank Bongiorno, The Sex Lives of Australians: A History (Melbourne: Black Ink, 2012), 20; John Waugh, ‘A Sodomy Case in Colonial Melbourne: The Prison Letters of George Bateson,’ Journal of Australian Colonial History 20 (2018): 83; Catie Gilchrist, ‘The ‘crime’ of precocious sexuality: Young male convicts and the politics of separation,’ Journal of Australian Colonial History vol. 8 (2006): 43-66; Catie Gilchrist, ‘Male convict sexuality in the penal colonies of Australia, 1820-1850,’ (PhD dissertation, University of Sydney: 2004). 2 In particular, Justice Windeyer’s comments in the Mount Rennie trial condemned ‘a crime so horrible that every lover of his country must feel that it is a disgrace to our civilization.’ ‘Intercolonial News,’ The Week (Brisbane), 11 Dec 1886, 23. See also Justice Webb’s comments in R v Wilson (1891) VPRS 264 P0000/20; Justice Madden’s comments in R v Purdue (1902) VPRS 1100 P0002/3; Justice A’Beckett’s comments in R v Woods (1911), VPRS 264 P0000, 27. 1 206 historical literature on sexual offences has understandably focussed on legislative developments, factors contributing to conviction and acquittal, the gendered nature of the offence and its prosecution, the nature of sexual violence against indigenous women, as well as questions of race and class bias against victims and perpetrators.3 Lisa Featherstone, Andy Kaladelfos and Judith Allen demonstrate how sexual offence cases revealed contemporary attitudes toward male sexuality.4 National prerogatives of mental and physical fitness in the late-nineteenth and early-twentieth centuries developed alongside psychological theories that promoted increasingly medicalised approaches to sexual offenders. Allen argues that sex crimes came to be viewed, both in professional and lay vernacular, as symptomatic of a pathological ‘type’ in the interwar period, a trend that this chapter seeks to evaluate.5 This chapter outlines the ways that various parties put forward ideas of mental health in trials for sexual offences between 1880 and 1939, with particular focus on community attitudes. I assess the sexual offences that carried the death penalty (rape, carnal knowledge of Jill Bavin-Mizzi’s study remains a most informative study of sexual offences in Victoria in the late-nineteenth century. Bavin-Mizzi, Ravished: Sexual violence in Victorian Australia (Sydney: University of New South Wales Press, 1995); Bavin-Mizzi, ‘Understandings of Justice: Australian Rape and Carnal Knowledge Cases, 1876-1924,’ in Sex, Power and Justice: Historical Perspectives of Law in Australia, ed. Diane Kirkby (Melbourne: Oxford University press, 1995), 19-32; Judith Allen, Sex and Secrets: Crimes Involving Women Australian Women since 1880 (Melbourne: Oxford University Press, 1990), 45-54, 77-80; Anne-Maree Collins, ‘Testimonies of Sex: Rape in Queensland, 1880-1919,’ Journal of Australian Studies 15, 29 (1991): 50-63; Andy Kaladelfos, ‘The Politics of Punishment: Rape and the Death Penalty in colonial Australia, 1841-1901,’ History Australia 9, 1 (2012): 155-175; Kaladelfos, ‘Crime and Outrage: Sexual villains and sexual violence in New South Wales, 1870-1930,’ (PhD dissertation, University of Sydney, 2010). For scholarship on the English and American contexts, see Joanna Bourke, Rape: A History from 1860 to present day (London: Virago, 2007); Joanna Bourke, ‘Sexual Violence, Bodily Pain and Trauma: A History,’ Theory, Culture & Society 29, 3 (2012): 25-51; Martin Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: Cambridge University Press, 2004), 75-122; Louise A. Jackson, Child Sexual Abuse in Victorian England (London and New York: Routledge, 2000); Crystal N. Feimster, Southern Horrors: Women and the Politics of Rape and Lynching (Cambridge, MA: Harvard University Press, 2009); Estelle B. Freeman, Redefining Rape: Sexual Violence in the era of Suffrage and Segregation (Cambridge, Massachusetts: Harvard University Press, 2013). 4 Lisa Featherstone and Andy Kaladelfos, Sex Crimes in the Fifties (Melbourne: Melbourne University Press, 2016); Kaladelfos, ‘The ‘Condemned Criminals’: Sexual violence, race and manliness in colonial Australia,’ Women’s History Review 21, 5 (2012): 697-714; Featherstone, ‘Pathologising White Male Sexuality in late Nineteenth-Century Australia through the medical prism of excess and constraint,’ Australian Historical Studies 41, 3 (2010): 337-351; Allen, Sex and Secrets, 54-153. 5 Allen, Sex and Secrets, 153. 3 207 a girl under ten and buggery) together in this chapter. Just as with capital trials for murder, capital trials for sexual offences saw popular judgments of insanity surface at the trial and posttrial stages, expressed by witnesses, jurors, relatives and communities through letters, petitions and newspaper articles. Feminist rape scholarship reminds us of the gendered nature of sexual crime.6 This chapter elucidates how discourses of mental health operated within the context of sex, power and gender relations in the period, with particular reference to the changing sexual mores of the 1920s. It further considers the impact of psychoanalysis and its adoption by ordinary people in the period of study, and additionally, following scholars such as David Philips, demonstrates how race and class factored into claims of insanity, where sexuality and propriety were judged differently in Aboriginal and the poorest of working-class defendants.7 It suggests the considerable power that lay judgments of insanity had in trials for sexual offences, in an era where medical professionals were increasingly trying to theorise and categorise sexual offenders. Contextualising sexual crime In the wake of controversy regarding high-profile rape cases and executions across the colonies in the 1880s, Victoria, Queensland and Western Australia enacted legislative reforms to their 6 Susan Brownmiller, Against Our Will: Men, Women and Rape (Harmondsworth: Penguin, 1975); Lyle Kehler, A Search for Power: The ‘Weaker’ Sex in Seventeenth-Century New England (Urbana: University of Illinois Press, 1980); Nazife Bashar, ‘Rape in England between 1550 and 1700,’ in The Sexual Dynamics of History: Men’s Power, Women’s Resistance, ed. London Feminist History Group (London: Pluto Press, 1983), 28-42. In Australia, see Ross Barber, ‘Rape as a Capital Offence in 19 th Century Queensland,’ Australian Journal of Politics and History 21, 1 (1975): 31-41; Janet Greenwood, ‘Women at Risk: Rape in Western Australia in the Nineteenth Century,’ in The Murdoch Ethos: Essays in Australian History in Honour of Foundation Professor Geoffrey Bolton, ed. Rae Frances and Bruce Scates (Perth: Murdoch University Press, 1981), 172-189; Gail Reekie, ‘Writing About Rape in 1888,’ Australia 1888 12 (Nov 1983): 31-39; Deborah Tyler, ‘The Case of Irene Tuckerman: Understanding Sexual Violence and Protection of Women and Girls, Victoria 1890-1925,’ History of Education Review 15, 2 (1986): 52-67. 7 David Phillips, ‘Anatomy of a Rape Case, 1888: Sex, Race, Violence and Criminal Law in Victoria,’ in A Nation of Rogues? Crime, Law and Punishment in Colonial Australia, ed. David Philips and Susanne Davies (Melbourne: Melbourne University Press, 1994), 97-192. 208 criminal codes.8 England abolished the death penalty for rape in 1841, and the colonial justification for retaining the capital sentence at mid-century—the unruly and volatile isolation of the frontier— no longer appeared persuasive to the crowds of citizens who protested against the death penalty for rape in the last decades of the century.9 By 1900, the only states to continue to carry the death penalty for rape were Victoria and New South Wales.10 Three capital offences remained in Victoria: rape, carnal knowledge of a girl under ten years of age, and sodomy of a boy under fourteen, or, with violence and without consent, ‘buggery’ of any man.11 ‘Buggery’ included consensual homosexual sex, yet the seven convicted cases examined in this chapter all involved boys under fourteen in non-consensual contexts. By narrowing the offences that carried the death penalty, the Crimes Act (1891) hoped to secure more jury convictions. Another offence introduced for rape, ‘rape with mitigating circumstances’, carried a term of imprisonment only.12 In addition, the criminal law communicated a growing recognition that sexual offending occurred in contexts where perpetrators possessed authoritative power over vulnerable victims: within the privacy of the family home, in schools and in workplaces or institutions. The Crimes Act (1891) recognised incest as a specific offence, raised the age of consent from twelve to sixteen years of age, legislated harsher terms of imprisonment where carnal knowledge occurred between male teachers and female students, and provided that lack of consent need 8 Crimes Act 1891 (Vic); The Criminal Law Amendment Act 1891, Statutes of Queensland, 6, 1889-1893; The Criminal Law Amendment Act 1892, Statutes of Western Australia, 2, 1883-1892. In particular, the Mount Rennie case and subsequent execution of four perpetrators caused national outcry and subsequently affected rape trial outcomes. In Queensland, the acquittal rate for rape trials leapt from 34 percent in the 1880s to 74 percent in the 1890s. Collins, 'Testimonies of Sex,’ 62. 9 Andy Kaladelfos, ‘The Politics of Punishment,’ 155-175. 10 Barry Jones, ed., The Penalty is Death: Capital Punishment in the Twentieth Century (Sun Books, 1968), 257; Jo Lennan and George Williams, ‘The Death Penalty in Australian Law,’ Sydney Law Review 34, 4 (2012): 668. 11 Victoria would retain the death penalty for rape until 1949. Carnal knowledge of a girl under ten was set out as a capital offence in the Crimes Act 1890 (Vic) s 45. Buggery was set out in Crimes Act 1890 (Vic), s 58. 12 This offence carried a maximum penalty of ten years. Crimes Act 1891, Statutes of Victoria, 55 Vict. Act no. 1231, section 10. 209 not be proven where female lunatics were sexually abused by staff in mental institutions.13 Through this legislation, Victorian politicians aimed to address the difficulties prosecutors faced in securing convictions for sexual crimes. However, the crime of rape remained difficult to prove in the courtroom due to the requirements surrounding victim testimony and establishing non-consent. For this reason, the insanity defence was rarely relied upon. Sexual offences often could only be substantiated in court through physical evidence such as bruises, a lacerated hymen or blood stains. This physical evidence of violence was crucial to the prosecutor’s requirement to prove there had been no consent, and defendants used consent as a defence in more than half of all reported rape cases between 1880 and 1890.14 In addition, the legal requirement of ‘corroboration’ held that a woman’s statement of non-consent was not considered credible without corroborating testimony from a witness, which was unlikely to surface in the cases of a crime perpetrated in desolate homes, streets and paddocks.15 Similarly, carnal knowledge and buggery often relied on the evidence of a child alone, according the defendant’s excuse of ‘mistaken identity’ greater plausibility.16 Unless considerable violence upon the victim was evident in court, juries hesitated to convict. Defence counsel scrutinised the character of female victims and it was not uncommon for victims to face interrogation by their own perpetrator in court.17 If there was no evidence 13 Crimes Act 1891, Statutes of Victoria 1891, Act. no. 1231, sections 5, 6, 8 and 11. This followed English Criminal Law Amendment Act 1885, section 48, 49. Similar reforms were introduced in Queensland. See Yorick Smaal, ‘Keeping it in the family: Prosecuting incest in colonial Queensland,’ Journal of Australian Studies 37, 3 (2013): 316-332. 14 Bavin-Mizzi, Ravished, 57. 15 Constance Blackhouse, ‘Skewering the Credibility of Women: A Reappraisal of Corroboration in Australian Legal History,’ Western Australian Law Review 29, 1 (2000): 79-107. 16 See Jennifer Anderson, ‘Using the Law: Working-Class Communities and Carnal Knowledge Cases in Victoria, 1900-06,’ Past Law, Present Histories, ed. Diane Kirkby (Canberra: ANU press, 2012), 85-106. 17 The case of John Hales (1889) illustrates this ordeal, where the victim was ‘paralysed with terror by reason of the presence and gaze of the prisoner. She was shaking with fright and sobbing during the whole period of her examination.’ Notes of Judge Hartley Williams, R v Hales (1889) VPRS 264 P0000/13. 210 of a broken hymen, doctors might testify that the victim was the type to masturbate or, if she was working class, imply consent through the baseless stereotype that young working-class girls preferred rough sex.18 The rape cases convicted in the Supreme Court of Victoria were those that contained the most evidence and, in the eyes of legal actors and jurymen, the most ‘respectable’ of victims. Conviction rates remained low throughout the period 1880-1939.19 It was common for offenders to be convicted of lesser offences such as attempted rape or rape with mitigating circumstances due to lack of evidence.20 Likewise, the statistics and ratios offered in this chapter are only approximations; it is likely that capital files for sexual offences were lost or removed owing to substantive omissions in certain years. This could possibly explain the absence of convicted capital cases between 1881 and 1889, although the exceptionally low conviction rate reported of the 1880s would have seen the bulk of guilty sexual offenders convicted of lesser sentences. 21 Offenders were more likely to be convicted on a lesser charge than convicted on a capital charge. Although 921 offenders were found guilty of capital sexual offences in Victoria for the period, only fifty offenders were convicted on capital charges: twenty-six men were convicted for rape, seventeen men were convicted for carnal knowledge and seven men were convicted for buggery.22 Although gang rape was reportedly a common occurrence and perceived as an issue pertinent to the Australian colonies, only a handful of men were convicted 18 See for example the medical evidence in R v Lucas (1889) VPRS 264 P0000/14. Bavin-Mizzi, Ravished, 39. Conviction was especially low across Victoria, Queensland and Western Australia during the late-nineteenth century: on average a 31 percent conviction rate in the 1880s and a 20 percent rate in the 1890s. 20 Bavin-Mizzi, Ravished, 31. 21 Nearly half of all rape charges were dismissed by magistrates at the lower court level. Australia wide, the 1880s saw 773 cases dismissed (43.04 percent); 1,027 (57.06 percent) convicted or committed for trial (total N=1,800). S. K. Mukherjee, Source book of Australian Criminal and Social Statistics 1804-1988 (Canberra: Australian Institute of Criminology, 1988), 60-95. 22 Data based on 1209 cases convicted at the Victorian Supreme Court 1880-1939 and 215 Capital Case Files held at the Public Record Office Victoria. Two offenders were executed in this period: John Wilson (1891) and David Bennett (1931). 19 211 of the crime in Victoria.23 Two men were executed for sexual crimes between 1880 and 1939, both convicted of carnal knowledge offences on very young girls: John Wilson, for the sexual assault of a six year old girl in 1891 and David Bennett, for the sexual assault of a four year old girl in 1937.24 On average, offenders received commuted sentences of between ten and fifteen years imprisonment, matching the average of male homicide sentences and higher than sentences for female perpetrators convicted of homicide.25 Lashings, so rarely ordered in homicide trials, were ordered for 38 percent of convicted rape offenders in the period, and 29 percent of carnal knowledge offenders, reflecting the idea that sexual offenders required corporal punishment if they were to be morally reformed.26 Among defence counsel, insanity arose with differing frequency among the three capital crime categories that is suggestive of how each crime sat with social mores surrounding sexual behaviour. As the crime of rape was difficult to substantiate in court, insanity defences were only relied upon in cases with significant evidence. In these trials defence counsel and doctors alike spoke of a natural, and therefore more excusable mental lapse in the heterosexual male defendant. In some cases, the victim was portrayed as having unbalanced the mind. In Attenborough (1913) a Dr Thomas Murphy spoke of how ‘the sight of a girl might upset his 23 Bavin-Mizzi points out the high incidence of gang rape in Qld, WA and Vic: of 190 rape charges across the three jurisdictions, 70 were cases of gang rape. Bavin-Mizzi, Ravished, 148. The bulk of Australian historical scholarship on rape centres on the Mount Rennie gang rape. See Frank Clune, Scandals of Sydney Town (Sydney: Pacific Books, 1966); David Walker, ‘Youth on Trial: The Mt. Rennie Case,’ Labour History 50 (1986): 28-41; Kate Gleeson, ‘White natives and gang rape at the time of the centenary,’ in Outrageous! Moral Panics in Australia, ed. Scott Poynting and George Morgan (Hobart: ACYS Publishing, 2007), 171-180; Kate Gleeson, ‘From Centenary to the Olympics, Gang Rape in Sydney,’ Current Issues in Criminal Justice 16, 2 (2004): 183-201; Juliet Peers, ‘The Tribe of Mary Jane Hicks: Imagining women through the Mount Rennie rape case 1886,’ Australian Cultural History 12 (1993): 127-144; Juliet Peers, ‘Accept Any Woman’s Word? Rape and Republicanism: The body beneath the foundation stone,’ Journal of Australian Studies 20, 47 (1996): 123-146. 24 R v Wilson (1891) VPRS 264 P0000/20; R v Bennett (1931) VPRS 264 P0001/10. John Wilson was convicted in the same year as James Johnston, the father who murdered his wife and four children in Ballarat, and Justice Webb regarded Wilson’s crime as ‘worse than pronounced murder.’ ‘The Execution of John Wilson,’ Argus, 16 May 1891, 3. 25 VPRS 264; VPRS 1100. 26 n = 10 of 26 convicted rape cases, n = 5 of 17 convicted carnal knowledge cases. VPRS 264 & VPRS 1100. 212 mental capacity so he could not restrain himself’ and in Cook (1916) the defence counsel argued that the victim ‘probably… influenced his mind as to obtaining consent from her’.27 This sort of defence met resistance among the judiciary, with Justice Hood replying in the 1913 case of Attenborough that if he were ‘a mental weakling… incapable of resisting sudden temptation’ then ‘every criminal would be a lunatic.’28 Rape was positioned as a natural crime that required self-control, a benchmark central to nineteenth-century hegemonic masculinity that male jurors and judges appraised perpetrators against. However, juries were of a different mind and often showed leniency where defendants claimed the victim had sent mixed messages regarding her willingness to engage in sex. In contrast, the crime of carnal knowledge and buggery attracted a greater number of insanity claims. As consent was not a permitted defence in carnal knowledge trials, defence counsel often relied upon the argument that the young victims had misremembered or misidentified their abuser. Rape of young girls was one of the most publicly condemned crimes in the period, prompting heated debates regarding the age of consent in the nineteenth century.29 In many respects jurors, Judges and the wider public assumed the offender to be mentally unstable in these cases, and accepted the testimony of medical witnesses who posited that the crime was caused by excessive masturbation in men. Following the French and English medical literature on the effect of excess or too little masturbation on the male brain, colonial psychiatrists actively monitored ‘sexual excess’ in men, with masturbation featuring as a symptom in male asylum case books.30 That doctors noted frequent or infrequent masturbation 27 Testimony of Dr, Thomas Murphy, R v Attenborough (1913) VPRS 1100 P0002/4; Letter from Charles Barnett to the Governor of Victoria, undated, R v Cook (1916), VPRS 264 P0001/6. 28 R v Attenborough (1913) VPRS 1100 P0002/4; ‘Death Sentence Recorded,’ Bendigo Advertiser, 26 Feb 1913, 5. 29 Bavin-Mizzi, Ravished, 69-70. 30 Catharine Coleborne, ‘White men and weak masculinity: Men in public asylums in Victoria, Australia and New Zealand, 1860s-1900s,’ History of Psychiatry 25, 4 (2014): 472-3. 213 in carnal knowledge cases reflects society’s placement of sexual abuse of girls closer to the realm of the pathological. While late-nineteenth century medical thought constructed male sexual balance as inherently fragile, it was up to the individual to master his sexual needs if he was to avoid public indecency or the frenzied perpetration of sex crimes.31 If judges, jurors and doctors considered rape in terms of ‘natural’ slippage, and carnal knowledge in terms of mental ill-balance as a result of masturbation, then the forcible sexual assault of boys under the age of fourteen, or the crime of ‘buggery’, occupied the top tier of deviancy whereby mental abnormality was inherently assumed. Only seven men were convicted of the offence between 1880 and 1939, and every case featured speculation in court and post-trial on the mental health of the offender.32 Jurors were more likely to find insanity in these cases, recommending prisoners such as Eli Wilson (1906) to mercy ‘on the grounds of his mental capacity’.33 However, the perceptions of judges, jurors and witnesses were divorced from medical evidence; doctors rarely contributed to the narrative of insanity in these trials. Dr John O’Brien testified that Richard Addison presented no symptoms of ‘mental weakness’ when he assaulted a ten-year-old boy in Northcote in 1911.34 Doctors who wrote of sexual criminals in colonial newspapers focussed on those who assaulted young girls, not young boys.35 Lisa Featherstone identifies a pointed medical silence on homosexuality and homosexual crime in nineteenth-century Australia, one that both she and John Waugh attribute to the lingering taint of sodomy in the earlier era of convict transportation.36 Judges, jurors, Tim Verhoeven, Timothy, ‘Pathologizing male desire: Satyriasis, masculinity, and modern civilization at the fin de siecle,’ Journal of the History of Sexuality 24, 1 (2015): 27. 32 R v Powell (1904) VPRS 264 P0000/26; R v Wilson (1906) VPRS 1100 P0002/3; R v Purdie (1908) VPRS 264 P0000/27; R v Addison (1911) VPRS 264 P0000/27. 33 R v Wilson (1906) VPRS 1100 P0002/3. 34 R v Addison (1911) VPRS 264 P0000/27. 35 ‘To the Editor,’ Argus, April 1922, 22. 36 Featherstone, ‘Pathologising White Male Sexuality,’ 247, 346-7; Waugh, ‘A Sodomy Case’. 31 214 police and in some cases, offenders themselves, used insanity to explain rather than diminish responsibility for buggery. As one offender said to police on arrest in 1895, ‘I can’t help it, it’s a disease… I prefer a man or a boy any time to a woman.’37 To this effect, insanity claims did not attempt to negate guilt, with offenders convicted and imprisoned for terms of seven years or greater, the majority with hard labour.38 No offender of buggery received lashes in his sentencing, a possible sign that colonial authorities viewed buggery as a form of abnormal constitution rather than a moral failure to be beaten out of a prisoner. Insanity claims in sexual offences trials Psychiatrists sought to explain sexual offending through a myriad of theories and classifications. The insanity defence was rarely submitted at trial and insanity claims often arose due to lingering suspicions of judges, legal counsel or prison staff in regard to the convicted prisoner’s sanity, suspicions that the Governor took seriously.39 Much like the area of ‘homicidal insanity’, diagnoses of mental aberration in sexual offences were varied and drew from different strands of psychiatry, referring to family history in lunatic asylums, physical muscle ticks, shape of the head, masturbation habits and alcohol consumption. Doctors were quick to ascertain underdeveloped mental faculties in sexual offenders. In the nineteenth century, ‘insanity’ encompassed not only short term mental health disorders but long-term or permanent mental instability or slow mental development, seeing patients with dementia or other cognitive difficulties that doctors placed into categories such as ‘idiot’, ‘imbecile’ or ‘moron’. In their correspondence with the Governor of Victoria, psychiatrists advised that sexual offenders were not ‘insane’ but intellectually underdeveloped, even though the offender 37 Bavin-Mizzi, Ravished, 126. R v James Powell (1904) VPRS 264 P0000/26; R v Eli Wilson (1906) VPRS 1100 P0002/3; R v John Purdie (1908) VPRS 264 P0000/27; R v Richard Addison (1911) VPRS 264 P0000/27. 39 The Governor was granted this power under the Lunacy Act 1890, 54 Vict. Act. No. 2178, section 6. 38 215 had been assessed as fit to plead at the outset of the criminal proceedings. Doctors advised the Governor that intelligence testing be introduced in certain trials. Twenty-five-year-old Fred Miller, convicted for rape in 1921, was given the test and doctors calculated his ‘mental age’ to be nineteen years and to have an Intelligence Quotient (I.Q.) of 118. The implication of this testing and psychiatric speculation around the intelligence of offenders was to assert that they weren’t so insane as to be acquitted under M’Naghten, but were nonetheless a subject for medical treatment post-trial. However, psychiatrists often examined defendants at the request of judges who had noted their own observations of insanity at trial. Writing to the Governor of Victoria in 1921 of the trial of Fred Miller for rape in the Horsham Supreme Court Assizes, Justice Mann recommended an inquiry into the mental health of Fred Miller, writing that ‘I formed a suspicion during the trial that there was a latent taint of insanity about him…. This was not apparent in his words or conduct in the dock or the witness box, but arose solely from the play of his features and particularly of his eyes.’40 On this recommendation, Miller underwent an intelligence test in gaol and was sentenced to be detained at the Governor’s pleasure after seven years imprisonment.41 Similarly, a rape trial in 1902 prompted Chief Justice Madden to note in his correspondence to the Governor that the defendant displayed signs of insanity when he ‘at times smiled somewhat fatuously at certain incidents in the proceedings’.42 In judges observations, insanity was something that could be gleaned in the physical demeanour of the defendant in the dock, and contributed just one form of lay opinion that influenced sexual offences trials in the period. 40 Judge Mann to the Governor, 14 April 1921, R v Miller (1921) VPRS 264 P0002/5. R v Miller (1921) VPRS 264 P0002/5. 42 Judges notes, R v Purdue (1902) VPRS 1100 P0002/3. 41 216 Defendants did not receive post-trial campaigns for mercy to the extent that perpetrators of intimate partner homicide did in Victoria, and insanity did not emerge as an overarching framework through which to view the actions of sexual offenders. There are several reasons as to why this may have been the case. Even though three sexual offence types carried the death penalty, convictions on those charges were low and the possibility of execution remained minimal. In contrast to the executions of 23 male prisoners and three female prisoners for murder in the late-nineteenth century, only one prisoner was executed for a sexual offence in Victoria between 1880 and 1900. In addition, when relatives or communities wished to write to the Governor on behalf of a convicted prisoner, the delicate nature of evidence in sexual offence cases allowed for a variety of excuses and explanations regarding time, place, physical evidence, mistaken identity and consent, meaning that insanity need not be relied upon. Nevertheless, the few cases that did see community involvement on behalf of defendants posttrial with reference to insanity demonstrates how influential this type of activism could be. Arthur Purdue was tried for the attack and brutal rape of Catherine Brady on the railway line to Morwell from Traralgon one afternoon in [month], 1902.43 On his first attack she managed to fend him off and he retreated to an adjoining paddock, yet when she then tried to run back down the line to her parents’ house, he caught up with and assaulted her ‘with such violence that all her underclothing was drenched in blood from the laceration of her hymen.’44 Purdue was known to Brady; he had lived with the family for a few years working for her father, and the defence alleged the two of them had been ‘sweethearts’. At Purdue’s first trial, the jury could not agree. At his second trial there was no mention of insanity, yet Justice 43 Catherine Brady was the oldest victim of the fifty convicted cases between 1880 and 1939, at twenty years old. Her case likely survived a routine character denigration due to her respectable family circumstances, her lack of sexual history and the substantial proof of violence wrought by her perpetrator. R v Purdue (1902) VPRS 1100 P0002/3. 44 Justice Madden’s notes, R v Purdue (1902) VPRS 1100 P0002/3. 217 Madden found something in his smile that was ‘not quite normal’. The jury, likely influenced by Madden’s directions, recommended Purdue to mercy due the demeanour of the defendant in court that had led them to believe he was ‘somewhat weak mentally.’ On receiving a petition signed by eighteen married men across the district who testified that Purdue was insane, the Governor requested that Constable Gorman, the police officer who had taken all original witness statements, investigate and conduct extensive interviews in Purdue’s home town. There was no mention of appointing a doctor to examine him, or any reference to medical knowledge of the mind.45 Gorman found a number of locals in Morwell willing to testify to Arthur—nicknamed in town as ‘Curly’— acted in a manner that townspeople characterised as abnormal. The head teacher at Morwell State School expressed that Purdue appeared ‘dull’ and at times ‘not quite right in his mind’.46 A former employer of Purdue described his ‘strange and erratic manner’.47 It remains unknown whether the younger witnesses, particularly the men who ‘ran with’ Purdue, were simply trying to save a friend from the death penalty. Percy Crowley, who testified as a witness at trial, conceded he spoke to Catherine’s brother William Brady in a pub in Bairnsdale the night before the first trial and asked, ‘Do you think Purdue would get off?’ Crowley also allegedly commented: ‘[Purdue] has been right enough to me until now… you know we can break the case down if we like.’48 Another young man in town, John Pinder, told Gorman ‘he does seem strange to me sometimes… I think he is not right’.49 The homicide cases discussed in Chapter Three also hint at a working cultural knowledge that madness 45 R v Purdue (1902) VPRS 1100 P0002/3. Report of Constable Gorman, 20 July 1902, R v Purdue (1902) VPRS 1100 P0002/3. 47 Report of Constable Gorman, 20 July 1902, R v Purdue (1902) VPRS 1100 P0002/3. 48 Testimony of Percy Crowley, Report of Constable Gorman, 20 July 1902, R v Purdue (1902) VPRS 1100 P0002/3. 49 Testimony of John Pinder, Report of Constable Gorman, 20 July 1902, R v Purdue (1902) VPRS 1100 P0002/3. 46 218 secured reprieves from execution, and in an era where jurors were reluctant in dealing the death penalty to rape offenders, the same thinking may have been at play. The perceptions of citizens in cases such as Purdue constitute an interesting dynamic in the late-nineteenth and early-twentieth century courtroom, particularly as English and French scholarship characterises the courtroom in this period as a site of heated professional contestation between medical and legal actors. The consideration afforded to lay judgments of insanity—opinions from judges, jurors and police especially— echoes the sentiment of Michael McDonald that ‘insanity is defined by experts but discovered by laymen.’50 Joel Eigen’s study of nineteenth-century English criminal trials is one of few to quantify lay judgements of insanity, finding that witnesses often identified madness in behaviour (39 percent) or conversation (30 percent) over appearance and physical injury.51 This communal consensus operated differently depending on the racial background and social status of offenders. While laymen testified to the eccentric behaviour of Purdue through descriptions of eccentric behaviour or the ‘play of his features’, the method in which lay witnesses characterised madness differed from case to case. By way of illustrative comparison, the one Aboriginal defendant sentenced to death in the period and the five returned soldiers convicted of sexual crimes demonstrate the difference in how actions and behaviour were explained in prisoners, and to what logical end. 50 Michael MacDonald, Mystical Bedlam: Madness, Anxiety and Healing in Seventeenth Century England (Cambridge: Cambridge University Press, 1981), 113. 51 N= 232. Based on trials heard in London’s central criminal court between 1760 and 1840. Joel Eigen, Witnessing Insanity: Madness and Mad-Doctors in the English Court (New Haven: Yale University Press, 1995), 84. 219 ‘Animal passions’: Mental ‘development’ and indigenous offenders Australian scholarship recognises sexual violence as an instrument of colonial displacement in the oppression of Aboriginal communities.52 As Ann Stoler argues, ‘gender-specific sexual sanctions and prohibitions [are] squarely at the heart of imperial agendas’.53 The archival record falls silent where encounters of rape and assault between Anglo-European settlers and Aboriginal women are concerned. Low detection and prosecution rates attest to a large and unknowable ‘dark figure’ of women assaulted.54 The belief among settlers that Aboriginal women could not be raped served to both enabled European men and hinder their prosecution at the lower court level.55 Settler constructions of the Aboriginal woman characterised her as sexually libidinous, harbouring little or no moral standards and willing to prostitute herself for money or alcohol.56 This racial characterisation can be seen in the only rape case involving an Aboriginal complainant in Victoria for the period, where the witnesses implied ‘the lubra’ or the ‘black gin’ could be treated differently than white women.57 The defence put forward was that Jenny Green had ‘invited the attentions’ of the two men who, greatly intoxicated, sexually assaulted her on the road from the Condah races in 1888. Frederick Wilson was the son of two convicts from Van Dieman’s land, and perhaps for this reason, he received less public sympathy than his co-offender due to his tainted lineage. On the other hand, Martin Holly 52 CD Rowley, The Destruction of Aboriginal Society (Melbourne: Penguin, 1972); Jonathan Richards, The Secret War: A true history of Queensland’s native police (St Lucia: University of Queensland Press, 2008); Lyndall Ryan, ‘Settler Massacres on the Port Phillip Frontier, 1836-1851,’ Journal of Australian Studies 34, 3 (2010): 257-274; Anna Haebich, Broken Circles: Fragmenting Indigenous Families 1800-2000 (Fremantle: Fremantle Arts Centre Press, 2000); Libby Connors, ‘Uncovering the Shameful: Sexual Violence on an Australian Colonial Frontier,’ in Legacies of Violence: Rendering the Unspeakable Past in Modern Australia, ed. Robert Mason (New York: Berghan Books, 2017): 33-53. 53 Ann Laura Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley, CA: University of California Press, 2002). 54 Bavin-Mizzi, Ravished, 171. 55 Bavin-Mizzi, Ravished, 171. 56 Carmel Harris, ‘The ‘Terror of the Law’ as applied to black rapists in Queensland,’ Hecate 8, 2 (1982): 22-48. 57 R v Holly (1888) VPRS 264 P0000/12; R v Wilson (1888) VPRS 264 P0000/12; Philips, 'Anatomy of a Rape Case’, 105. 220 received overwhelming support in the form of a mass petition post-trial (750 signatures, Ararat and surrounding district), as well as two petitions once both men were serving prison time (450 signatures in 1892 and 190 signatures in 1893).58 The petitions outlined Holly’s previous good character, his intoxication and, in what historian David Philips identifies as a reason ‘thrown in for good measure’, testimony of Holly’s ‘weakened’ brain having been kicked in the face by a horse years earlier.59 The way in which insanity claims were used to support European men such as Holly were markedly different to those deployed in cases where defendants were Aboriginal men charged with the sexual assault of white women. The only Aboriginal man sentenced to death for rape in the period was a man named Isiah Jennings (1897). Jennings was walking on a road near the Lake Tyers Mission Station in Gippsland when twelve-year-old May Simms saw him and hid in a patch of scrub as she was ‘frightened of colored [sic] people’. At trial Simms told the court of how Jennings had chased her, thrown her down and raped her while threatening to choke her if she told anyone. Jennings later signed a confession from prison. Insanity was not mentioned at trial, meaning the jury had been unprompted when they recommended Jennings to mercy on the ground that ‘having regard to the fact that he was a blackfellow and but little educated he probably did not fully appreciate the enormity of the offence he committed’.60 The way jurors phrased Jennings’ diminished responsibility contained similarities to the stipulations of the M’Naghtan rules. According to the jury, Jennings should not be treated leniently due to want of education, but because ‘he did not fully appreciate’ the severity of the offence, similar to the wording of M’Naghtan that held: ‘if he did know what he was doing, he Philips, ‘Anatomy of a Rape Case,’ 115. Philips, ‘Anatomy of a Rape Case,’ 113. 60 In subsequent reports, the language of the jurors was changed from ‘blackfellow’ to ‘considering his race’. Justice Madden to the Attorney General, 11 March 1897, R v Jennings (1897) PROV VPRS 264 P0000/25. 58 59 221 did not know what he was doing was wrong’. Jurors perhaps unknowingly applied the same legal logic to Jennings as was applied to insane offenders. 61 Post-trial activism followed suit. In explaining his crime, Jennings framed his actions just as many other white men did in the era, by explanation of intoxication. ‘You know anyone will do a thing like that when he gets a drink’, Jennings told police in an interview. However, the subsequent letters and petitions in support of Jennings adopted a rhetoric of lack of mental development that, while surfacing in cases of white men such as Fred Miller in the same period, contained overt racial and paternalistic language. Two petitions outlined Jenning’s diminished capacity to understand the laws of their own ‘more privileged race’.62 The Office of the Board for Protection of Aborigines explained that the Executive needed to consider ‘the well-known intense animal passions that Aborigines, with their degraded ancestry and evil tribal influences’ differed from the ‘hereditary’ of white men.63 Similarly a petition signed by the Dean of Melbourne and other prominent men argued that the crime was one of a ‘barbarian who had not learned to control the brutal instincts of a savage race’.64 Where the crime of rape was judged in terms of a failure of nineteenth-century restraint and self-control in Anglo-European men, Aboriginal men as a group were deemed unable to exert self-control due to their perceived delayed ‘evolution’ that the colonial civilising process aimed to remedy. The case of Jennings stands out as an anomaly among the 26 other convicted rape cases of the period, yet the racialised discourse that constructed Jennings as an Aboriginal defendant speaks to a larger colonial project of defining and categorising the indigenous body under the M’Naghten's Case [1843] All ER Rep 229. F. A. Hagenauer, General Inspector of Aborigines to Governor Brassey, 16 March 1897, R v Jennings (1897) PROV VPRS 264 P0000/25. 63 F. A. Hagenauer to Governor Brassey, 16 March 1897, R v Jennings (1897) PROV VPRS 264 P0000/25. 64 G. O. Vance, Dean of Melbourne, Henry A. Langley, Archdeacon of Melbourne and Geelong, and A. F. French, Honorary Secretary to the Church of England Mission to Aborigines in Victoria to Governor Brassey, 17 March 1897, R v Jennings (1897) PROV VPRS 264 P0000/25. 61 62 222 objective-scientific auspices of medicine and law. Alecia Simmonds describes how Aboriginal people were ‘discursively situated in a state of nature’, whereby colonial law sought to ‘speak for them, act on them and guide them in appropriate civilised behaviour’.65 Warwick Anderson demonstrates how scientific, medical and legal spaces were not so dissimilar to the domains of art, film and literature as sites of national production, disseminating racial ideology to suit settler-colonial states. 66 Colonial doctors perceived the Aboriginal mind as a ‘window into the deep past of humanity’, presuming an evolutionary difference that was influenced by Darwinian theory.67 Victoria did not execute any Aboriginal men after 1847, differing in practice to states such as Queensland, where half the men executed in the nineteenth century were Indigenous.68 Nevertheless, the reprieve of Jennings acted as a lesson to Aboriginal populations that the Executive could act not merely as a punitive but as a ‘civilizing force’ in its treatment of Indigenous prisoners.69 The infantilization of Aboriginals removed male heteronormative sexuality at the heart of colonial rape cases and defended or even celebrated in masculinist publications.70 Samia Hossain writes of how popular medical tracts made no reference to Indigenous sexualities and reinforced a ‘cult of forgetfulness’ and ‘the legal fiction of ‘terra nullius’’.71 Colonial masculinities were central to capital rape trials in the era. Andy Alecia Simmonds, ‘Promises and piecrusts were made to be broke’: Breach of promise of marriage and regulation of courtship in early colonial Australia,’ Australian Feminist Law Journal 23, 1 (2005): 107. 66 Warwick Anderson, The Cultivation of Whiteness: Science, Health and Racial Destiny in Australia (Melbourne: Melbourne University Press, 2002), 2. 67 Paul Turnbull, ‘The ‘Aboriginal’ Australian Brain in the Scientific Imagination, c. 1820-1880,’ Somatechnics 2, 2 (2012): 184. 68 Mark Finnane, ‘The origins of Criminology in Australia,’ Journal of Criminology 45, 2 (2012): 160. 69 Stacey Hynd, ‘Killing the condemned: the practices and process of capital punishment in British Africa, 19001950s,’ Journal of African History 49, 3 (2008): 404, 418. 70 See the Bulletin’s reporting of the Mt Rennie rape in Nina Philadelphoff-Puren, ‘Reading Rape in Colonial Australia: Barbara Baynton’s ‘The Tramp’, The Bulletin and Cultural Criticism,’ Journal of the Association for the Study of Australian Literature (2010), 1-14. 71 Samia Hossain, ‘Antipodean Intimacies: Medical Sex Advice for Women in the Australian Colonies, 18571890,’ Australian Feminist Studies, 22, 52 (2007): 98. On the ‘cult of forgetfulness’, see Heather Goodall, Invasion to embassy: Land in Aboriginal politics in New South Wales, 1770-1972 (St Leonards: Allen and Unwin, 1996), 104-6. 65 223 Kaladelfos’ study of two rape trials in New South Wales demonstrates the Executive’s reprieve of two white men and the consequent execution of an Aboriginal man on the basis of demonstrated ‘manliness’ throughout the proceedings.72 ‘Male honour’, Kaladelfos writes, ‘was something exclusive to white manhood’.73 The erasure of male subjectivity in cases such as Jennings’ formed part of a broader colonial project that could not be further removed from the tacit recognition of pardonable male sexuality in returned soldiers two decades later. War-induced ‘moral weakness’: Returned soldiers who committed rape Houstonia Jessie Pettigrew was an enterprising young woman living in South Yarra with her parents in 1916. A female machinist by trade, she had been in town to see about some work before having lunch with her father, after which she stopped in the scenic Alexander Gardens to read copies of The Bulletin and The Age. It was around three o’clock when a man in uniform approached the bench she was sitting on and asked whether he could sit with her, to which she replied that the gardens were public and she couldn’t stop him. He made a comment about the weather and they began to converse about the war: who they knew had served, who they knew had been killed. When Pettigrew stood to leave, Michael Cook remarked he was going home the same way and asked whether he could accompany her. It was when they passed through the Botanical Gardens that Cook caught Pettigrew by the wrist and threatened to choke her if she screamed out. Around half-past six Houstonia entered the kitchen of her home sobbing, her torn skirt stained with dirt, grass and blood, and told her mother she had been ‘cruelly outraged by a soldier’.74 Kaladelfos, ‘The ‘Condemned Criminals.’ Kaladelfos, ‘The ‘Condemned Criminals,’ 704. 74 Trial transcript, R v Cook (1916) VPRS 264 P0001/6, 1-4. 72 73 224 Critical scholarship of Australians in the First World War has effectively broken many silences surrounding serious misdemeanours in the military and among soldiers, yet sexual violence remains muted in these works.75 Until the 1990s the Australian Government publicly denied accounts of rape perpetrated by Australian soldiers in occupied Japan during the Second World War, and the topic still provokes tensions among politicians and RSL spokesmen today.76 Joanna Bourke writes of how acknowledgement of rape in these contexts is received as an attack on ‘Australian mateship’, and asks what says about Australian national identity ‘if mateship means that soldiers turned a blind eye to atrocities committed by their mates?’77 It is possible that, without the undeniable mass rapes that other national militaries have had to confront, instances of rape by Australian soldiers can more easily be presented as individual anomalies rather than a broader commentary on military culture.78 More importantly, to acknowledge rape as part of the Anzac story endows the national hero with the same ‘barbarism’ used to caricature groups outside of the nation. Christina Twomey documents how feminist ‘Women Against Rape’ protests on Anzac Day in the early 1980s verbalised the issue of sexual violence in war, the resulting public retaliation rekindling public investment in Anzac remembrance.79 The reinvigoration of Anzac ‘began with the raped woman’ who would eventually be completely obscured in favour of the ‘traumatised male war veteran’.80 The rate 75 See Elizabeth Nelson, Homefront Hostilities: The First World War and Domestic Violence (Melbourne: Australian Scholarly Publishing, 2014); Bruce Scates and Melanie Oppenheimer, The Last Battle: Soldier Settlement in Australia, 1916-1939 (Melbourne: Cambridge University Press, 2016); Peter Stanley, Bad Characters: Sex, Crime, Mutiny, Murder and the Australian Imperial Force (London: Pier 9, 2010), 230-244. 76 ‘Diggers Raped Japanese Women,’ Age, 23 Sep 1993, 1, cited in Susanne Davies, ‘Women, War and the Violence of History: An Australian perspective,’ Violence Against Women 2, 4 (1996): 361. 77 Bourke, Rape: A History, 359. 78 Since the 1990s rape has received increased scholarly attention as a weapon of warfare. Literature deals with rape in war generally, and rape in specific wars amongst specific militia. See Davies, ‘Women, War and the Violence of History’; Robin May Schott, ‘War, Rape, Nationality and Genocide,’ Journal of Genocide Research 13, 1-2 (2011): 5-21; Yuki Tanaka, ‘Rape and war: the Japanese experience,’ Sajor, supra note 10, 148 (1998): 165-166; Madeline Morris, ‘By Force of Arms: Rape, War and Military Violence,’ Duke Law Journal 45, 4 (1996), 653. 79 Christina Twomey, ‘Trauma and the reinvigoration of Anzac,’ History Australia 10, 3 (2013): 85-108. 80 Twomey, ‘Trauma and the reinvigoration of Anzac,’ 92. 225 of sexual violence incidents within the AIF is unknown, but that almost ten percent of convicted defendants between 1880 and 1939 were returned soldiers is not insignificant, suggesting that Houstonia Pettigrew’s experience was not altogether exceptional.81 Sexual offence trials spoke of a lowered capacity for sexual self-control in returned soldiers, this vulnerability eliciting public sympathy. Trial documents suggest that service records effectively preserved a soldier’s heteronormative masculinity in the eyes of the public. Martin Crotty and Mark Edele write of veterans as an ‘entitlement group’, the exact benefits extended to returned soldiers dependant on a ‘perceived moral debt owed to soldiers by their society’.82 We have seen how this ‘moral debt’ operated to excuse returned soldiers who murdered, and sexual offence trials were no different. The sexual nature of these crimes reinforced the belief that returned soldiers were a specific type of offender where concessions to legal processes should be made. Cook’s lawyer explained to the Executive that both Cook’s service to his country, as well as his ‘conduct generally under the temptations assailing our soldiers’ indicated he was not a man to wilfully premeditate such a crime.83 This assumption of no premeditation conflicted with Pettigrew’s testimony. After the rape she had asked Cook why he had done this to her; he allegedly replied that while he had been abroad ‘a bloody Australian had wronged two of my sisters and I am going to revenge myself on other boy’s [sic] sisters’.84 The defence counsel’s argument, that while Cook was not ‘mentally deranged’ his experiences on the battlefield had ‘weakened his 81 n = 4, VPRS 264 and VPRS 1100. These were Michael Cook and Edward Harris for rape (1916), Charles Critchley for buggery (1916) and Duncan Graham for carnal knowledge (1920). R v Cook (1916) VPRS 264 P0001/6; R v Harris (1916) VPRS 264 P0001/6; R v Critchley (1916) VPRS 1100 P0002/5; R v Graham (1920) VPRS 264 P0001/7. 82 Martin Crotty and Mark Edele, ‘Total War and Entitlement: Towards a Global History of Veteran Privilege,’ Australian Journal of Politics and History 59, 1 (2013): 17; Martin Crotty, ‘The RSL and Post-First World War Returned Soldier Violence in Australia,’ in Legacies of Violence: Rendering the Unspeakable Past in Modern Australia, ed. Robert Mason (New York: Berghan, 2017), 185-199. 83 Charles Barnett to the Executive Council, undated, R v Cook (1916) VPRS 264 P0001/6. Italics mine. 84 Trial testimony, R v Cook (1916) VPRS 264 P0001/6, p. 2. 226 mental balance’ so as to prevent him from resisting temptation’, was the narrative the public accepted post-trial.85 Each of the four returned soldiers prompted citizens and family members to forward letters and petitions to the Executive in defence of the ‘mental weakness’ each man suffered as a result of active service. The language used to explain this ‘mental weakness’ was as vague as that used in the homicide cases of Arthur Oldring and Albert Budd, with no medical terminology regarding shell shock or evidence of medical examination by doctors. Yet the language used by citizens in these cases adhered to the differing levels of pathology attached to the crimes of rape, carnal knowledge and buggery as set out above. While Michael Cook and Edward Harris’ mental ‘imbalance’ was framed as an understandable by-product of war service and the ‘temptations’ availing soldiers, Duncan Graham returned from war with ‘an accentuated moral weakness’ in following with Victoria’s stance on the assault of young girls.86 The Executive called for Graham’s detention at the Governor’s pleasure, a sentence often reserved for serious offences (usually carnal knowledge) or offenders deemed guilty but insane. Charles Critchley, a one-legged soldier who assaulted a young boy just two days after being discharged from the forces, was not in a ‘normal condition’ mentally, according to his family.87 Critchley’s mother argued in a petition to the Governor that he needed ‘proper medical attention’ rather than punishment.88 Both Cook and Critchley had served at Gallipoli, and a 85 Charles Barnett to the Executive Council, undated, R v Cook VPRS 264 P0001/6. R v Cook (1916) VPRS 264 P0001/6; R v Harris (1916) VPRS 264 P0001/6; R v Graham (1920); ‘Death sentence commuted,’ Age, 5 May 1920, 10. 87 Emma Rebecca Critchley to the Governor of Victoria, 16 Oct 1916, R v Critchley (1916) VPRS 1100 P0002/5. 88 Emma Rebecca Critchley to the Governor of Victoria, 16 Oct 1916, R v Critchley (1916) VPRS 1100 P0002/5. 86 227 fellow returned soldier wrote of how Critchley’s affected mind originated from severe injuries suffered at Lone Pine.89 These letters and petitions cast mental infirmity as another injury or suffering wrought by service, adding rather than reducing the ‘moral debt’ society owed to returned soldiers who raped. Members of the public advocated this position in calling for returned soldiers to receive commuted sentences at trial and forego the ‘hideous ceremony’ of pronouncing the death sentence. 90 It is notable that, unlike the homicide case of Albert Budd (1918), the RSILLA fell silent in cases of convicted sexual offenders. Martin Crotty identifies how RSL-condoned violence, specifically within the context of mass demonstrations, was a means by which the RSL influenced the Australian body politic.91 The organization did not use individual crimes, especially sex crimes, to proffer the returned soldier as a desperate recipient for specialised care as the relatives of convicted offenders, such as Emma Critchley, attempted to. ‘Judge and jury should recognise the gravity of the offence’, Woman Voter commented in the case of Cook, part of an ongoing commentary in the women’s paper regarding rape and carnal knowledge. ‘Crimes are perpetrated which prove the authors of them to be mad, yet there is no agitation for these people to be detained in a lunatic asylum’.92 Returned soldiers in sexual offences trials not only posed the question of how they were to be treated before the law, but how leniency in their cases might devalue the severity of sexual crimes. Woman Voter called on men and women to denounce sex crimes as a ‘dangerous mental disease’ that required sustained treatment and detainment if the safety of Australian women and children was to be secured.93 In attributing the ‘the sudden coming of militarism to our community’ to increased 89 George Thomas Stanford to the Governor of Victoria, 27 Oct 1916, R v Critchley (1916) VPRS 1100 P0002/5. 90 ‘Commuting Death Sentences,’ Truth, 18 Nov 1916, 4. 91 Crotty, ‘The RSL and Post-First World War Returned Soldier Violence’. 92 ‘Criminal Offence,’ Woman Voter, 14 Dec 1916, 3; ‘Insanity,’ Woman Voter, 28 July 1914, 2. 93 ‘Insanity,’ Woman Voter, 28 July 1914, 2. 228 danger for young girls, Woman Voter spoke out against sexual assault and war just as Women Against Rape did over half a century later.94 Critics of Woman Voter argued that ‘women should not speak of such things’, foreshadowing the retaliatory culture against women during the interwar period that was apparent in in trials for rape.95 ‘Perverts’ and the new sexual sciences, 1920-1939 The topic of sexuality underwent a major discursive shift between 1880 and the interwar period, moving away from Victorian silences regarding sex education and toward a ‘science’ of sexuality in terms of physical and psychological health. Kerreen Reiger traces a burgeoning acknowledgment in Australian society of sexual instincts in children, the theories and management for which were provided by the fields of sexology, psychoanalysis and mental hygiene.96 A newfound acceptance of sexual pleasure was to be tempered with responsible sexual activity (particularly in propagation of a healthy race) and constraints on overindulgence.97 One of the most important changes in relation to sexual offences was the psychologization of offending. The actions of the nineteenth-century sex offender spoke to his failure of self-control, while the actions of the interwar sex offender hinted at a complex neurotic ‘type’.98 A new generation of doctors replaced and reassured the public, professing to possessed the specialised training required to ‘see’ the underlying pathologies of modern sex offenders. This broad-ranging discursive shift is visible on the micro-level in the changing format of police and medical reports in capital trials. The Inspector-General of the Victorian Penal and ‘The Social Evil,’ Woman Voter, 15 June 1916, 2. ‘Insanity,’ Woman Voter, 28 July 1914, 2. 96 Kerreen M. Reiger, The disenchantment of the home: modernizing the Australian family, 1880-1940 (Oxford: Oxford University Press, 1985), 178-209. 97 Reiger, The Disenchantment of the Home, 201. 98 Reiger, The Disenchantment of the Home, 201. 94 95 229 Gaols Department observed of the prisoner John Griffiths, convicted for rape in the 1930s, that he ‘always appeared to be on his guard… afraid of dropping some hint that might lead [prison guards] to understand his real nature.’99 The means by which doctors ascertained defendant’s ‘real nature’ had grown more elaborate; the single paragraph reports of turn-of-the century Victoria expanded to several pages with the subheadings of ‘intelligence’, ‘temperament’ and ‘sexual history’.100 Doctors described the inner mentality of prisoners, divulging to the Executive how ‘phantasies and day dreams of such intercourse form the major content of [prisoner’s] mind’.101 Sexual habits and consumption of pornography constituted evidence in pinpointing the proclivities of the offender, particularly in ‘dirty books and postcards’.102 Public support for the newly professionalised fields of psychiatry, psychology and mental hygiene celebrated the potential for experts to identify sex offenders and better protect the community from a perceived spate of sex crimes. 103 While they were not privy to the professional methods and knowledge of specialists, members of the public echoed the new perception of sex offenders as a distinct group of ‘sexually unbalanced men’ who were increasingly referred to as ‘sex pests’, ‘sex maniacs’, ‘child molesters’, ‘sex cranks’ and ‘perverts’.104 The organisations affiliated with these professions began to involve themselves in capital cases. The Howard League for Penal Reform, a group associated with the Criminology Society, sent a letter to the Executive outlining the futility of the death penalty in diminishing sexual insanity: it was ‘unjust that this abnormal man should atone for the 99 R v Griffiths (1937) VPRS 264 P0001/12. Italics my own. R v Bennett (1931) VPRS 264 P0001/10. 101 R v Bennett (1937) VPRS 264 P0001/10. 102 R v Neven (1925) VPRS 264 P0000/30. 103 ‘Menace to Children, Perverts at Large,’ Argus, 20 April 1922, 8. 104 ‘Street Pests,’ Prahran Telegraph, 1 Jul 1916, 5; ‘Menace to Children,’, Argus, 8; ‘Menace to Society: Sexual Maniac has Death Sentence Recorded,’ Daily Standard (Brisbane) 23 Mar 1923, 6; ‘Assaults Upon Women,’ Age, 15 Apr 1930, 10; ‘Sensation Caused,’ Weekly Times, 29 Nov 1930, 6; ‘Pervert’s Appeal Dismissed,’ Maryborough Chronicle, 12 May 1937, 8. 100 230 misjudgement of those who let him loose to prey upon Society [sic].’105 This sentiment encapsulated the arguments of the new child psychologists and the era, who laid great stress on the social responsibility of the community in deterring sexual insanity, and in particular, the duty of mothers in instilling healthy sexuality in their children.106 In the same vein, sexual offence trials reveal more attention paid to the early psychosexual history of offenders and even indicated the influence of psychoanalysis on offenders themselves. While police reports contained previous histories of offenders in the latenineteenth century, the new line of sexual inquiry from the 1920s onward revealed or implied possible cycles of sexual abuse. The Penal and Gaols Department reported that David Bennett’s sexual history began at age seventeen when he slept in the same bed of an old man who was employed by his father. This man ‘masturbated Bennett by hand and tongue, and filled his thoughts with sexual imagery’.107 Hector Neven divulged he had been raped four times by a teacher just prior to leaving school: ‘he put me face downwards on a seat in the grandstand at the football ground.’108 Neven was only 16 when he was convicted of buggery in 1925. No explicit link was drawn between prisoner’s past abuse and subsequent offending in these reports, yet the inclusion of such material suggests this was perhaps an early association of childhood experiences and cyclical trauma with the behaviour of sexual offenders. While the previous chapter discussed the extent to which Freudian psychoanalysis contributed to medical practice and legal definitions of insanity, cases of sexual offenders referring to Freudian theories themselves lends a fascinating insight into the spread of these ideas. The intelligence test conducted on Fred Miller in 1921 contained the following note on 105 Charles Strong, President of the Howard League for Penal Reform to the Governor of Victoria, 21 Sep 1932, R v Griffiths (1937) VPRS 264 P0001/12. 106 Reiger, The Disenchantment of the Home, 200-203. 107 Report of the Penal and Gaols Department, 9 Sep 1932, R v Bennett (1931). 108 R v Neven (1925) VPRS 264 P0000/30. 231 the back: ‘He has bought two books on psychology and read them carefully… he believes his knowledge of psychoanalysis will help him to become a good citizen’.109 It is all too easy to argue that science replaced religion or morality in this era, but it is possible Miller viewed psychoanalytical introspection as a means of personal reform. Similarly, John Griffith’s requests for doctors to castrate him may or may not have contained psychoanalytic inferences.110 Miller and Griffith’s words, though mediated through the communication of the Penal establishment, attest to the ‘eclectic ways’ that Freudian theories circulated during the period.111 The interwar years witnessed the rise of the professional mental health expert who claimed to be endowed with the knowledge to identify the pathology of sexual offenders. This was increasingly ascertained through subjective methods of inquiry rather than objective observation. The general categories of insanity put forward in late-Victorian sexual offences cases lost favour in a society concerned with the unique pathology of the individual as the summation of his or her childhood development and life history. This was the era, Damousi writes, of ‘individual subjectivity’.112 However, this did not deter doctors and the general public from grouping sex offenders into medicalised ‘fringe groups of [the] psychopathic’: the ‘sex maniacs’ and ‘sex cranks’ within society.113 Judith Allen reminds us that this grouping was in itself predicated on the individual offender; sex offenders were only classified as ‘maniacs’ or ‘cranks’ where abnormality or deviant sexuality in offender’s past histories or present crimes could be detected.114 Just as many rape trials did not host insanity claims at all, with hostility 109 Memo, Penal and Gaols Department to the Governor, 14 July 1927, R v Miller (1921) VPRS 264 P0001/7. R v Griffiths (1937) VPRS 264 P0001/12. 111 Damousi, Freud in the Antipodes: A cultural history of psychoanalysis in Australia (Sydney: UNSW Press, 2005), 54. 112 Damousi, Freud in the Antipodes, 54. 113 Judith Allen, Sex and Secrets, 153. 114 Judith Allen, Sex and Secrets, 153. 110 232 directed at the victim rather than the offender. The sexual liberation of the New Woman was met with hostility in the courtroom, particularly when she occupied the seat of rape victim. She was accused of being libidinous, deceptive and in a surprising amount of cases, insane herself. The ‘hysterical’ rape victim in a culture of disbelief That rape victims were not believed, that their character as impugned in the courtroom was used to suggest consent or malicious slander against the perpetrator was not uncommon during the interwar years and, as nineteenth-century cases demonstrate, this practice was by no means novel in the 1920s. Historical scholarship on rape in the nineteenth century has outlined how ‘the most common line of defence in sexual assault cases was the denigration of their victim’s character’, the effect of this akin to putting the victim on trial alongside her perpetrator. 115 Consent was argued in a number of different ways: the victim did not cry out enough, she did not have sufficient evidence of violence on her body, she was not a virgin, she had been intoxicated, she was friendly with her perpetrator or she had shared a drink him prior to the assault. In addition, a broader masculinist politics was at play. Legislative debates over an increased age of consent in late-nineteenth Victoria and Western Australia were hindered due to hand-wringing regarding the idea that duplicitous young girls concocted stories of rape for social or financial benefit.116 Juliet Peers demonstrates how Australian male journalists and writers constructed the female rape victim as a ‘de facto ally’ to the ‘forces of class repression’ in an era where working-class men bore the brunt of penalisation and executions for sexual offences.117 Peers acknowledges that a key aim of these authors’ representations was to protest 115 Bavin-Mizzi, Ravished, 139. Here I discuss female victims only, as Bavin-Mizzi demonstrates that in nineteenth-century Victoria, only one sodomy case of 46 tried across three jurisdictions between 1880 and 1900 questioned the male victim’s character. 116 Bavin-Mizzi, Ravished, 69; Blackhouse, ‘Skewering the Credibility of Women,’ 87. 117 Peers includes in her analysis an essay by Henry Lawson that suggested ‘that making false rape charges was something of a national hobby for Australian women’. Peers, ‘Accept Any Woman’s Word?’ 125. 233 capital punishment, yet argues that ‘reformist discourses formed partnership with fin de siècle misogyny’ in explaining away sexual offences in the colonies.118 The vilification of victims persisted into the twentieth century with the arrival of the New Woman archetype and stereotypical characterisations of modern girls as cold, calculating and sexually aggressive. Alongside letters condemning the ‘sex pests’ that threatened Australian school children were letters railing against ‘viciously imaginative women’ who made false rape charges.119 Judges made sure to advise juries not to convict defendants on the word of the victim alone due to the ‘experience that on occasion some women… from malice… cover up misconduct on their part’.120 Constance Blackhouse, in analysing a 1922 rape case tried in Western Australia, demonstrates how findings of consent in these trials acted to ‘straitjacket women’s freedom to experiment sexually’.121 Similarly, the convicted case to produce the lowest sentence between 1880 and 1939 in Victoria (just two years imprisonment) involved the rape of two young salesgirls by two conspiring male friends after they had flirted at a local dance near the South Melbourne Cricket Ground. The defence counsel described the appearance of the victims, one ‘sported an Eton crop, the other had bobbed hair’, embellishing the narrative with symbols of the women’s fast sexuality. 122 What followed in court was a relentless disparagement of these girls as having led the men to believe they were willing to have intercourse.123 Peers, ‘Accept Any Woman’s Word?’ 124. ‘Woman’s False Charges,’ Argus, 30 Jan 1914, 7. 120 Judge’s charge, R v Griffiths (1937). 121 Constance Blackhouse, ‘Her protests were unavailing’: Australian legal understandings of rape, consent and sexuality in the 'roaring twenties,” Journal of Australian Studies 24, 64 (2000): 33. 122 R v Currier (1926) VPRS 1100 P0002/5. 123 This was forward for the jury to consider in Justice Dixon’s summing up. Trial transcript, R v Currier (1926). 118 119 234 Less investigated in historical scholarship is the dismissal of rape victims as insane, a practice that appears to have enjoyed longevity across the period.124 Medical opinion lent an air of legitimacy when Dr James Florence argued in an 1884 rape trial that ‘a woman suffering from drink is liable to nymphomania crazes’.125 Decades later Justice Martin informed the jury in the case of John Griffiths (1937) that women ‘[from] hysteria… or through some abnormality of mind … brought unfounded charges against men.126 The historical record hints to a wider discourse used to reinforce colonial control over young Aboriginal girls, where certain girls who had been boarded out to white households work as indentured labour in New South Wales spoke out to the Aborigines Protection Board of their sexual abuse. The Board’s Homefinder labelled one of these girls a ‘sexual maniac’ and threatened her with confinement in a lunatic asylum.127 These instances indicate that mental impairment not only featured as a framework to explain the behaviour of sexual offenders, but as an argument used to dismiss the claims of victims. In addition, rape trials reveal the vulnerability of mentally disabled girls and women to sexual abuse. Martin Wiener comments on debates in late-nineteenth century England regarding the capacity of ‘weak-minded’ or ‘idiot’ women to consent, leading to the legal stipulation that consent was not valid where it was ‘induced by terror’.128 Mentally impaired women’s experiences of sexual assault in the nineteenth-century are less well known, particularly as they are dependent on trial documents referring to victims in this way. The trial of John Lucas (1884) discloses how defence counsel used Martha Stafford’s intellectual Analyses such as Peers’ refer to victims being attributed with ‘virginal hysteria’ as part of an overall culture of dismissal. Bulletin, 29 November 1897. 125 R v Carlisle (1884) VPRS 30/680. 126 R v Griffiths (1937) VPRS 264 P0001/12. 127 Victoria Haskins, “A better chance?’ Sexual abuse and the apprenticeship of Aboriginal girls under the NSW Aborigines Protection Board,’ Aboriginal History 28 (2004): 45. 128 Wiener, Men of Blood, 112-114. 124 235 disability against her in court stating, ‘the girl was of weak intellect and invented the story’.129 The doctor who testified at trial agreed that Martha had been ‘of very weak intellect’ since the age of fourteen and from his examination surmised that she must have had sexual intercourse frequently or practiced masturbation— ‘probably the latter’.130 Justice Hodges summed up in favour of the defence, concluding that ‘consequently the prisoner has not done serious harm… she was not very unwilling and did not seriously resist.’131 Hodges’ reasoning suggests a disregard for the concession for ‘inducement by terror’ provided in British and Australian law, a failure of the legal system on the part of mentally disabled complainants. David Bennett (1931) had been previously convicted for the rape of a young girl in Western Australia in 1914 who police described as ‘mentally unsound’, another indication of mentally impaired women as a targeted group of victims.132 Conclusion This chapter has sought to examine how ideas of mental health operated in the fifty cases of sexual offences convicted in the Victoria and Supreme Court assizes between 1880 and 1939. When read alongside one another, these case trials create a vivid picture of colonial and modernist Australia in a strong exemplification of how richly legal records can inform social history. Colonial trials speak to the ways different sexual offences attracted explanations of mental abnormality, the convict taint and medical silence on homosexual rape and a comparative permissiveness regarding heterosexual rape. In their scrutiny of offenders and distrust of victims, the pathologisations found in criminal trials fail to hide the ideologies regarding race, sexuality and sexual liberation that often prompted these claims. The language 129 R v Lucas (1889) VPRS 264 P0000/14. R v Lucas (1889) VPRS 264 P0000/14. 131 Judge’s charge, R v Lucas (1889) VPRS 264 P0000/14. 132 R v Bennett (1931) VPRS 264 P0001/10. 130 236 used to explain mental impairment in defendants depended on their status within the nation, with returned soldiers benefitting from public sympathy while indigenous offenders received mercy for a presumed lack of mental development. Over the course of the period insanity was utilised not only to explain the behaviour of defendants but to dismiss the experiences of rape victims, while mentally disabled victims could not always depend on the law to recognise their non-consent. Capital cases reveal where narratives of insanity had purchase when it came to sexual offence trials. In trials where victims were adult women, insanity defences were rarely put forward due to the burdensome legal requirements required to establish rape in court, as well as cultural understandings of heterosexual rape as a natural slippage on the part of men who could not command self-control. Conversely, cases that presented victims who were children saw more use of insanity claims to explain behaviour that society viewed as abnormal and pathological. In cases where victims were adult women, the one area in which insanity claims played a central role were in cases perpetrated by returned servicemen during the First World War. In these trials, friends and family referred to war-induced mental imbalance in order to explain the crimes of returned servicemen and secure a commuted sentence. In contrast to the case of Budd discussed in Chapter Five, the RSILLA distanced itself from returned servicemen who committed sexual offences, while the Executive demonstrated relative leniency towards these offenders. Colonial and modern attempts to understand, explain and control sexual crime can be seen from the proliferation of discursive formulations of mental imbalance explored in this chapter. That the clinical gaze held substantive power in the colonial criminal courtroom, that is, both in categorising and measuring the mental capacity of perpetrators and in examining the bodies of female victims—is undeniable, yet medical professionals did not hold the supreme authority that scholars assert existed in the courtrooms of fin de siècle France or England. 237 Ordinary citizens propagated a popular language of insanity—or several languages— to make sense of defendants’ actions in the period. The slow professionalisation of psychiatry in Australia afforded colonial observers the authority to identify madness in sexual offenders, an opportunity that would narrow considerably with the codified language of psychoanalysis and the health sciences into the 1920s and 1930s. Rather than a medical voice diagnosing the sexual offender in turn-of-the-century Victoria (be it the general practitioner, the insanity expert, the mental hygienist or the interwar psychologist), studies of mental health in historical sexual offences trials need to similarly listen for those other voices that held authority: those of the judge, the jurors, the witnesses, the journalists, the observers in the broader community. 238 Conclusion The years 1880 – 1939 marked a period of contestation between legal, medical and public views of insanity in Victoria’s capital trials. I have endeavoured to capture this rich intersection of law, medicine and society by examining the claims of criminal insanity that were made within the criminal courtroom. The criminal trial process admitted the opinion of those without medical training— police, judges and jurors— and attached a certain degree of authority to the observations in documentation that was forwarded to the Governor and his cabinet. From the 1880s, the colonial practice of petitioning expanded in the area of criminal trials in the form of post-trial letters and petitions to the Executive Council. In these public campaigns, insanity operated as more than an occasional excuse, as characterised in other histories, but rather, came to be recognised as a useful framework petitioners could deploy to explain or diminish the wrong doings of a convicted prisoner. The small number of doctors specialising in psychiatry in the colony, often overburdened by work in the colonial lunatic asylums and with little time to read or theorise on criminal insanity compared to their European contemporaries, failed to carve out an exclusive authority within the criminal courtroom. From the late-nineteenth century up until the interwar period, psychiatrists were just one voice among many to identify insanity and have tangible impact on sentencing outcomes, and, in the absence of a substantial medical authority on the subject, public speculations of madness flourished. Public narratives of criminal insanity offer a window into how ideas of criminal acts and the concept of ‘criminality’ itself was applied to or contrasted with offenders in the period. This was most apparent in trials for infanticide, a crime that came to be socially understood as a product of mental instability attending pregnancy, and one that attracted the most public commentary around the mental states of defendants. The application of insanity in these cases 239 was a means by which colonial women could advocate for the reduced sentence of prisoners, while at the same time protesting the financial and social burden shouldered by women who bore illegitimate children. Insanity was not put forward in every case of convicted infanticide; the cases where this commentary arose offers the historian a political index as to where sympathies lay for certain offenders, and the function of a perceived ‘respectable femininity’ in these cases. Women who were young, employed in domestic work and were known to be respectable, thus fitting within the ‘seduced and abandoned’ stereotype, were more likely to receive public support through the narrative of ‘madness’. The case of Rosanna Plummer in 1884 marked the high point of this sort of campaigning and set a precedent for public claims of insanity in similar trials in the decades that followed. Older women who engaged in theft or prostitution, despite having to resort to these crimes for same financial and social pressures, were not publicly supported in the same way and in some cases, were executed. In contrast to the vociferous campaigns for young infanticide defendants, the trials of women who perpetrated murder against spouses or older family members were met with relative silence from the public. Despite contemporary authorities in psychiatry and criminology putting forward theories around the pathology inherent to female criminals, women who perpetrated murder outside of infanticide attracted the least amount of speculation regarding mental states and the least amount of public support. This finding stands in contrast to theories that have long dominated the fields of history and criminology in the assertion that the criminal justice system awarded a paternal ‘chivalry’ to female defendants, and in addition, the claim that both medical and public insanity claims sought to remove the agency and the capacity for deliberate violence from women who killed. This thesis has shown that insanity has been imputed by historians and authors in the cases of women such as Martha Needle to a much greater extent than it was raised amongst the public at the time of their trial. 240 Class dynamics were crucial in campaigns for justice, with women who were middleclass or possessed wealthy connections securing advocacy on the basis of insanity, while working-class women whose cases contained elements unsavoury to middle-class values were left to advocate for themselves. Where insanity did feature in such cases, the way in which ordinary people characterised mental instability was more varied and dynamic than previously characterised in the literature, encompassing more than a blanket ‘chivalry’ bestowed by the judge, jury or Executive. Rather, cases saw women’s anger and violence towards men legitimised in the same way as male violence towards spouses in the period: as a product of temporary mental instability induced by an insult that society viewed as appropriately grievous. While this application in female cases was in the minority, it demonstrates how women who killed were not robbed of agency through the language of insanity within the courtroom. On the contrary, judges, jurors and the public legitimised their anger in explaining how they had understandably ‘snapped’ and killed. Historians of criminal insanity have been preoccupied with the subject’s relationship to female offenders and femininity, and this dissertation has shown how pertinent it is to ask the same question of male offenders and masculinity. Trials of male-perpetrated intimate partner homicide witnessed a phenomenon almost analogous to the activism in infanticide trials during the late-nineteenth and early-twentieth century. It is not insignificant that infanticide and male perpetrated homicide were two crimes that caused considerable concern among colonial authorities and saw a relatively high rate of executions in Victoria between 1880 and 1900 in comparison to other capital felonies. Temporary insanity emerged in this period as an accessible framework through which relatives, neighbours and spectators could explain the actions of men who killed wives or partners. In these cases, a middle-class politics of respectability that pushed for family-oriented responsibility, emotional love and restraint in men had bearing on which offenders received campaigns for mercy on the basis of temporary 241 insanity. Men who were involved in their communities and had ostensibly shown affection towards their spouse were represented in the press and among the public as sympathetic figures who, gripped by a temporary frenzy, had acted out of character at the time of the crime and should not receive the full penalty of the law. This construction of temporary insanity differed to that proposed in infanticide trials, which was more closely tied to the effects of pregnancy and stress on the female body, and in male trials petitioners described an unprecedented mental instability that had struck at the time of the crime and just as quickly receded, being careful to distinguish temporary criminal insanity from the more permanent mental illness that relegated colonists to the lunatic asylum. Here the object for activists was not to substantiate insanity to the extent that the prisoner would be moved an asylum, but to provide enough doubt of sanity to save the offender from execution. This framework of temporary insanity preceded public constructions of ‘shell shock’ during the First World War. The use of insanity in post-trial campaigns for mercy is indicative of public attitudes towards crimes and offenders, as evidenced in the different characterisations of insanity in cases of male-perpetrated murder. Where offenders did not demonstrate the values of the middle class or the aspirational working class, in that their relationships were beyond the boundaries of proprietary or they had previously been convicted of a crime, public commentators described their insanity through the lens of nineteenth century psychiatry, in terms of hereditary illness and predisposition to crime that in some instances was used to advocate the execution of a prisoner. The variation between narratives of insanity continued into the First World War, where servicemen were either the recipient of public campaigning on the basis of war-induced mental instability, or on the other hand, condemned as a subject fit for institutionalisation. As meanings of masculinity shifted with the war, the particulars of ‘service’ were paramount in determining the character of convicted returned soldiers in the eyes of the public. 242 Public readings of madness in offenders were just as varied in trials of capital sexual offences. Rape trials did not see frequent use of the insanity defence due to the substantial difficulties prosecutors faced in bringing convictions for that crime, yet when insanity was raised, it was construed as a natural mental slippage or impulse experienced by heterosexual men. Conversely, the capital sexual offences of buggery and carnal knowledge of a girl under the age of ten prompted perhaps the most ubiquitously medicalised explanations for criminal offending, echoing theories of deviancy and moral defectiveness propagated by the medical profession during the period. Language differed when it came to offenders outside of the standard Anglo-Australian working-class mould. Where Aboriginal defendants were charged with sexual crimes, government officials and the public alike explained their actions through lack of education and understanding; it was argued that Aboriginal men did not possess the mental capacity to understand settler law, and therefore should be treated with leniency. Such discourse perpetrated the racial oppression that shifted from physical violence to scientific rationalism over the course of the late-nineteenth and early-twentieth century. To a lesser extent, insanity was also deployed as an instrument of violence against female complainants, who defence counsel and doctors could easily discredit through assertions of slow mental development. Criminal trials reveal how the lay public received psychiatric theories, and in some cases, how the public incorporated or manipulated such theories in public and legal usage. The activism of the late-nineteenth century saw lay persons appropriating the diagnostic terms of psychiatry, such as ‘puerperal mania’, ‘monomania’, ‘feeble minded’ and ‘moral insanity’, and apply them indiscriminately to criminal cases based on personal observations rather than any medical commentary. Capital trials also demonstrate an increasing push by jurors for the recognition of ‘impulse’ in the legal definition of insanity, and the relative popularity of psychoanalytic explanations for criminal offending. In its periodisation this dissertation traces 243 the slow consolidation of psychiatry as an established and respected medical profession. The interwar period witnessed a turn to ‘experts’, not only in psychiatry but in new related fields such as child psychology that promised potential in the study and prevention of criminal behaviour. Psychiatric reports evolved from a cursory paragraph to several pages outlining the intelligence, personality and personal history of offenders, pre-empting the psychological turn to childhood and memories that would shape the psychiatric classification of criminals from the mid-twentieth century onwards. With the decline of executions in Victoria, the integration of psychology with criminal law processes and the increasing deference to psychiatric expertise, both the need and the enthusiasm for public activism on the basis of mental instability waned. In its analysis of capital trials this dissertation brings to light the extent of lay involvement in the trial process and argues that public narrativizations of insanity became characteristic of post-trial advocacy in late-nineteenth century Victoria. Insanity claims were put forward in response to murder and sexual offence trials by an array of groups and individuals with various political or personal motivations. Insanity was a discursive strategy to save offenders from capital punishment, yet the way madness was constructed in these cases offers so much more to the cultural historian than has been previously acknowledged. At their heart, insanity claims revealed the ways in which ordinary men and women reacted to and reconciled with violent crimes that could throw into contestation categories such as ‘masculine’ and ‘feminine’, ‘respectable’ and ‘criminal’. Insanity claims were an avenue through which colonists could legitimise their stance on issues such as reproductive freedoms or recognition of war service, and these claims could have a palpable effect on sentencing outcomes. In a field that is progressing toward big quantitative data analysis to better understand historical crime, this thesis has taken a step back in revisiting well-trodden cases and reviewed the intricate 244 interactions between defendants, police, lawyers, jurors, judges, journalists and the broader public as they grappled with questions of motive, agency, responsibility and madness. 245 Appendix Offenders convicted on a capital charge for murder or sexual offences in Victoria, 1880-1939 No. Trial year 1. 1880 1880 2. 3. 1880 4. 1880 5. 1881 6. 1881 7. 1882 8. 1883 9. 1883 10. 1884 11. 1884 12. 1884 13. 1884 14. 1884 15. 1884 16. 1885 17. 1885 Defendant Charge William PUNCH Rape William CARBIS Charles HANSEN Eliza LUCAS Henry PERRITT Robert ROHAN William CROOK Robert BURNS John FRAIPONT John GREY John HAWTHORNE Henry MORGAN William O’BRIEN Mary SILK Rosanna PLUMMER William BARNES John HUNT Rape Rape Murder Indictment Imprisonment for life Imprisonment for life 10 years VPRS 264 consignment no./unit no. P0000/9 VPRS 1100 consignment no./unit no. P0000/9 P0000/9 P0000/9 Rape Imprisonment for life 1 month Murder Executed P0000/10 Murder P0000/10 Murder Imprisonment for life Executed Murder 15 years P0000/10 P0000/10 Murder 10 years with hard labour Executed Murder Executed P0000/10 Murder Executed P0000/11 Murder 20 years P0000/11 Murder Free pardon P00001/1 Murder Executed P0000/11 Murder 15 years with hard labour P0000/11 P0000/10 P0000/10 P0000/10 246 18. 1885 Edward HUNTER Freeland MORRELL Sarah WILLIAMS Bridget MEPHAM Martin HOLLY Frederick WILSON Mary KEMPTON Michael O’SHEA John ANGLIN Filipe CASTILLO Bella FERGUSON John HALES Murder Executed P0000/11 Murder Executed P0000/11 Murder 2 years P0000/11 Murder P0000/12 Rape Imprisonment for life 15 years Rape 15 years P0000/12 Murder 10 years with hard labour Imprisonment for life Imprisonment for life Executed P0000/12 P0000/13 P0002/1 P0000/13 P0002/1 William HARRISON William JONES Murder 10 years with hard labour 20 years with hard labour and 3 sets of flogging, 15 lashes each Executed 32. 1889 John LUCAS Rape 33. 1889 Robert LANDELLS William MEREDITH Murder 35. 1889 John BATTY Rape 36. 1889 James ROSS Carnal knowledge 37. 1890 George DAY Rape 19. 1885 20. 1885 21. 1887 22. 1888 23. 1888 24. 1888 25. 1888 26. 1889 27. 1889 28. 1889 29. 1889 30. 1889 31. 1889 34. 1889 Murder Murder Murder Murder Rape Rape Rape P0000/12 P0000/12 P0000/13 P0000/13 P0000/14 20 years with hard P0000/14 labour and 2 sets of flogging, 15 lashes each 20 years, with 3 sets P0000/14 of flogging, 15 lashes each Executed P0000/15 12 years with 2 sets of flogging, 15 lashes each 12 years with 2 sets of flogging, 15 lashes each 15 years with 2 sets of flogging, 15 lashes each 15 years P0002/1 P0002/1 P0000/16 P0000/16 P0000/16 P0000/16 P0002/1 247 38. 1890 John MALONE Carnal knowledge 39. 1891 John FINNIGAN John PHELAN Cornelius BOURKE Fatta CHAND James JOHNSTON John WILSON William COLSTON John WILSON Mary FITZGERALD Ann O’BRIEN Frederick DEEMING John CONDOR Frances KNORR Cecilia ANDERSON George BURNETT Elijah COCKROFT Alfred DOUGLAS James WATSON William GREEN Frederick JORDAN Ernest KNOX Michael MALONEY Murder 40. 1891 41. 1891 42. 1891 43. 1891 44. 1891 45. 1891 46. 1891 47. 1892 48. 1892 49. 1892 50. 1892 51. 1893 52. 1894 53. 1894 54. 1894 55. 1894 56. 1894 57. 1894 58. 1894 59. 1894 60. 1894 P0000/17 P0002/1 P0000/18 P0000/1 Murder 5 years with 2 sets of flogging, 20 lashes each Imprisonment for life Executed P0000/19 P0002/1 Murder Executed P0000/17 P0002/1 Murder Executed P0000/1 P0002/1 Murder Executed P0000/19 P0002/1 Murder Executed P0000/19 P0001/1 Murder Executed P0000/18 Carnal knowledge Murder Executed P0000/20 P0002/1 P0000/20 P0002/1 P0000/21 P0002/1 Murder 3 years with hard labour Imprisonment for life Executed P0000/21 P0002/1 Murder Executed P0000/21 P0002/2 Murder Executed P0000/22 P0002/2 Murder Imprisonment for life 15 years with hard labour Executed P0000/22 P0000/23 P0002/2 P0000/23 P0002/2 P0000/23 P0002/2 Murder Imprisonment for life Imprisonment for life 10 years with hard labour Executed P0000/23 P0002/2 Murder Executed P0000/24 P0002/2 Carnal knowledge 10 years with 3 sets of flogging, 25 lashes each P0000/24 P0002/2 Murder Murder Murder Murder Murder Murder P0000/23 P0002/2 P0000/23 248 61. 1894 62. 1895 63. 1895 64. 1895 65. 1895 66. 1895 67. 1896 68. 1897 69. 1897 70. 1897 71. 1897 72. 1898 73. 1899 74. 1900 75. 1900 76. 1900 77. 1900 78. 1900 79. 1901 80. 1902 81. 1902 82. 1902 Martha NEEDLE Emma WILLIAMS Arthur BUCK Ewen MELACHI Murder Executed P0001/2 Murder Executed P0001/2 Murder Executed P0000/24 P0002/2 Carnal knowledge P0000/24 P0002/2 William ROBERTSON Charles STRANGE Wah LIM Charles HALL Isaiah JENNINGS William PHILIPS Alexander QUINN Alfred ARCHER Travice TOD John FERRIER Ebenezer MILLER John PRIDMORE Margaret HEFFERNAN William JONES Edwin NASH Selina SANGAL Auguste TISLER George FAGAN Carnal knowledge Murder 2 years with 2 sets of flogging, 15 lashes each 15 years P0000/24 P0002/2 Executed P0000/24 P0002/2 Carnal knowledge Murder 7 years with hard labour Executed P0000/24 P0002/2 P0000/24 P0002/2 Rape 15 years P0000/25 P0002/2 Murder Imprisonment for life 12 years with hard labour Executed P0000/25 P0002/2 P0000/25 P0002/2 P0000/25 P0002/2 6 years with hard labour Imprisonment for life 15 years with hard labour 20 years with hard labour 4 years with hard labour Executed P0000/25 P0002/2 P0000/26 P0002/3 P0000/26 P0002/3 P0000/26 P0002/3 P0001/3 P0002/3 P0001/4 P0002/3 Imprisonment for life Imprisonment for life Executed P0000/26 P0002/3 P0001/4 P0002/3 Murder Murder Murder Murder Carnal Knowledge Murder Murder Murder Murder Murder Murder Murder Imprisonment for life with hard labour P0002/3 P0002/3 249 83. 1902 Michael QUIGLEY Rape 84. 1902 Arthur PURDUE Rape 85. 1903 Charles GLANDFIELD Murder 86. 1903 Henry HARVEY Murder 87. 1904 James POWELL Charles THOMPSON James WILLIAMS William HOPE Buggery Piraim SINGH James ROUHAN Eli WILSON Ah YOU Rape Thomas TRELOAR Charles DEUTSCHMANN John MANNING Murder John PURDIE James COSGROVE Bertie PRENTICE Richard ADDISON Frank WOOD 88. 1904 89. 1904 90. 1905 91. 1905 92. 1905 93. 1906 94. 1907 95. 1907 96. 1908 97. 1908 98. 1908 99. 1909 100. 1910 101. 1910 102. 1911 10 years with one set of flogging with 15 lashes 15 years with 2 sets of floggings, 15 lashes each Imprisonment for life with hard labour Imprisonment for life with hard labour 12 years with hard labour 10 years P0002/3 P0002/3 P0001/4 P0002/3 P0002/3 P0000/26 P0002/3 P0000/26 P0002/3 Executed P0000/26 P0002/3 15 years with 2 sets of floggings, 15 lashes each 5 years with hard labour Imprisonment for life 10 years with hard labour Imprisonment for life with hard labour Imprisonment for life Executed P0000/27 P0002/3 P0000/27 P0002/3 P0002/4 P0002/3 P0000/27 P0002/3 P0000/27 P0002/3 Buggery Imprisonment for life with hard labour 7 years P0000/27 P0002/3 Rape 10 years P0000/27 P0002/4 Rape P0002/4 Buggery Detained at the Governor’s pleasure 10 years P0000/27 Carnal knowledge 15 years with 1 flogging, 15 lashes P0002/4 Carnal Knowledge Murder Rape Murder Buggery Murder Murder Murder P0002/3 P0001/5 P0002/3 P0002/3 P0000/27 P0002/4 250 103. 1911 104. 1911 105. 1911 106. 1912 107. 1912 108. 1912 109. 1913 110. 1913 111. 1913 112. 1913 113. 1913 114. 1914 115. 1914 116. 1915 117. 1915 118. 1915 119. 1915 120. 1915 121. 1916 122. 1916 123. 1916 124. 1916 125. 1916 William SMITH Thomas FREDERICK Alfred PARKE Joseph PFEFFER Edward MCDONALD Murder Thomas FREDERICK Walter ANDERSON Agnes FERRY Phillip WALLWORTH Frank ATTENBOROUGH Albert SIMMONDS Edgar EINSPORN Antonio SORRO Demetrius MORFESSIE John JACKSON Ah TUNE Emma LONSDALE John MCNAMARA Michael COOK Edward HARRIS George LEEK Antonio PICONE Charles CRITCHLEY Carnal knowledge Murder Carnal knowledge Carnal knowledge Murder Carnal knowledge Imprisonment for life 10 years P0001/6 P0002/4 P0002/4 Detained at the Governor’s pleasure Executed P0000/28 P0002/4 Imprisonment for life with 3 sets of flogging, 15 lashes each 10 years P0002/4 P0001/5 P00002/4 P0002/4 Imprisonment for P0001/5 life Detained at the P0001/5 Governor’s pleasure 10 years P0001/6 P0002/4 P0002/4 Murder Imprisonment for life Detained at the Governor’s pleasure Imprisonment for life Imprisonment for life 10 years with hard labour Executed Murder 10 years Murder Murder Rape Rape Carnal knowledge Murder Murder Murder Murder Rape Rape Murder Murder Buggery P0002/4 P0002/4 P0002/4 P0000/29 P0002/4 P0000/29 P0002/4 P0000/29 P0002/4 P0000/29 P0002/5 P0000/29 P0002/4 Detained at the P00001/6 Governor’s pleasure Imprisonment for P0001/6 life 7 years P0001/6 P0002/4 12 years with hard labour Imprisonment for life Executed P0001/6 P0002/5 P0001/6 P0002/5 P0001/6 P0002/5 7 years with hard labour P0002/5 P0002/5 P0002/5 251 126. 1916 127. 1917 128. 1917 129. 1917 130. 1917 131. 1918 132. 1920 133. 1921 134. 1922 135. 1923 136. 1923 137. 1924 138. 1924 139. 1925 140. 1925 141. 1926 142. 1926 143. 1927 144. 1928 145. 1928 146. 1929 147. 1930 148. 1930 Maria BLACK Albert BUDD Robert COWMEADOW Clarence SEFTON Murder 10 years Murder Executed P0000/30 P0002/5 Buggery 10 years P0001/7 P0002/5 Murder P0001/7 P0002/5 Francis DUNIN Arthur OLDRING Duncan GRAHAM Fred MILLER Colin ROSS James PETERS John EVANS Charles JOHNSON Angus MURRAY Hector NEVEN Alexander THOMAS Murder Murder Imprisonment for life with hard labour 15 years with hard labour Executed P0001/7 P0002/5 Carnal knowledge Rape Detained at the P0001/7 Governor’s pleasure 7 years P0001/7 P0002/5 Murder Executed P0002/31 Buggery Imprisonment for life 10 years Martin KNOPP Charles CURRIER Arthur KOTSIAKOS William CARR George GORDON Thomas BACON Richard BUCKLEY Herbert DONOVAN Carnal knowledge Murder P0002/5 P0002/5 P0000/30 P0002/5 P0002/5 P0002/5 Imprisonment for life Executed P0000/30 P0000/30 P0002/5 P0001/8 P0002/5 Murder 5 years with hard labour Imprisonment for life with hard labour 15 years P0001/8 P0002/5 Rape 2 years Murder 15 years with hard labour Imprisonment for life Imprisonment for life Imprisonment for life Imprisonment for life 15 years Murder Buggery Murder Murder Murder Murder Murder Murder P0002/5 P0003/2 P0002/5 P0001/8 P0001/8 P0002/5 P0001/9 P0002/5 P0001/9 P0002/5 P0001/9 P0002/6 P0001/10 P0002/6 252 149. 1930 150. 1931 151. 1931 152. 1933 153. 1934 154. 1935 155. 1936 156. 1936 157. 1937 158. 1937 159. 1937 160. 1937 161. 1938 162. 1938 163. 1938 Arthur SKERRIT William DASHWOOD David BENNETT Patrick SHEEDY John BOLES Mary STEVENS Edward CORNELIUS Arnold SODEMAN John GRIFFITHS Reginald KILPATRICK Michael O’BRIEN Herbert JENNER Thomas JOHNSON Selwyn WALLACE George GREEN Murder Imprisonment for life Imprisonment for life Executed P0001/10 P0002/6 P0001/10 P0002/6 P0001/10 P0002/6 P0001/10 P0002/6 P0001/11 P0002/6 Murder Imprisonment for life Imprisonment for life 3 years P0001/11 P0002/7 Murder Executed P0001/11 P0002/8 Murder Executed P0001/11 P0003/3 Rape Imprisonment for life Imprisonment for life Imprisonment for life Imprisonment for life Executed P0001/12 P0002/9 P0001/12 P0002/9 P0001/12 P0002/9 P0001/12 P0002/10 P0001/13 P0002/11 Imprisonment for life Executed P0001/13 P0002/10 P0001/13 P0002/11 Murder Carnal knowledge Murder Murder Murder Murder Murder Murder Murder Murder 253 Bibliography Primary Sources National Archives of Australia NAA: B2455, CA 2001 Australian Imperial Force, Base Records Office, First Australian Imperial Force Personnel Dossiers, 1914-1920. Public Record Office of Victoria VA 466 Governor and Governor’s Office, Capital Sentences Files VPRS 1100. VA 2825 Attorney-General’s Department, Capital Cases Files, VPRS 264. VA 1464 Penal and Gaols Branch, Chief Secretary’s Department, Central Register of Male Prisoners, VPRS 515. VA 1464 Penal and Gaols Branch, Chief Secretary’s Department, Central Register of Female Prisoners, VPRS 516. Newspapers and Periodicals Avoca Mail Advocate Age Argus Avoca Mail Australasian Australian Women's Sphere Ballarat Courier Ballarat Star Bendigo Advertiser Bendigo Independent British Medical Journal Coburg Leader Colac Herald 254 Creswick Advertiser Dawn Free Lance Geelong Advertiser Gippsland Farmer’s Journal Gippsland Times Herald Herald Sun Horsham Times Independent Kerang Times Kilmore Free Press Labor Call Lancet Leader Melbourne Punch Mount Alexander Mail Ovens and Murray Advertiser Police News Portland Guardian South Bourke and Mornington Journal Snowy River Mail Telegraph Truth (Melbourne) Warrnambool Standard Warragul Guardian Weekly Times Woman Voter Yackandandah Times Legislation (Victorian unless otherwise stated) Crimes Act 1891 Crimes Act 1915 255 Crimes Act 1949 Criminal Lunatics Act 1884 (UK) Infant Life Protection Act 1890 Infanticide Act 1922 (UK) Infanticide Act 1938 Lunacy Act 1890 Marriage and Matrimonial Causes Statute 1864 Poor Prisoners Defence Act 1916 Poor Persons Legal Assistance Act 1928 Official parliamentary papers & government publications Census of Victoria, 1881. Melbourne: Government Printer, 1883. Infanticide Act (1938) Second Reading, House of Lords Hansard, 22 March 1938. ‘Jury Service in Victoria’, Final Report of the Parliament of Victoria Law Reform Committee. Melbourne: Government printer, 1997. ‘Mortality of Male and Female Infants, 1871-1890’, Australian Yearbook 1890-1, p. 334-336. Parliamentary debates, Victorian Legislative Assembly, Historical Hansard series. Melbourne: Government printer. https://www.parliament.vic.gov.au/hansard/historical-hansard. Report of the Royal Commission on Asylums for the Insane and the Inebriate, Victoria Parliamentary Papers, 1886-1888. Melbourne: John Ferres, Government Printer, 1886. Victoria Government Gazette 1851-1986, State Library of Victoria online series. Melbourne: Government printer. http://gazette.slv.vic.gov.au/. Victorian Legislative Debates & Law Reports Attorney-General (SA) v Brown [1960] AC 432. O’Neill v The Queen (1977) 141 CLR 496. Sodeman v R [1936] HCA 75. Web sources Coppel, E. G. 'à Beckett, Sir William (1806–1869).' Australian Dictionary of Biography, National Centre of Biography, Australian National University. 256 http://adb.anu.edu.au/biography/a-beckett-sir-william-2862/text4079, published first in hardcopy 1969, accessed online 28 July 2020. Cullen, Enid and Alana Piper. ‘Crime across time: Mapping longitudinal changes in criminal justice,’ The Prosecution Project, Research Brief 20, https://prosecutionproject.griffith.edu.au/crime-across-time-mapping-longitudinalchanges-in-criminal-justice, 2 February 2016, viewed 1 June 2020. Gurciullo, Sebastian. 'Ellery, Reginald Spencer (Reg) (1897–1955)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/ellery-reginald-spencer-reg-10110/text17847, published first in hardcopy 1996, accessed online 28 July 2020. Ryan, Peter 'Barry, Sir Redmond (1813–1880).' Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/barry-sir-redmond-2946/text4271, published first in hardcopy 1969, accessed online 28 July 2020. Books, Journal Articles and Pamphlets published before 1939 Cowles Prichard, James. On the different forms of insanity, in relation to jurisprudence, designed for the use of persons concerned in legal questions regarding unsoundness of mind. London: Hippolyte Baillière, 1842. Deakin, Alfred. A Crisis in Victorian Politics, 1879-1881. Edited by J. A. La Nauze and R.M. Crawford. Melbourne: Melbourne University Press, 1957. Reginald Ellery, ‘Psycho-Analysis and the Worship of Baal in 1928’ Medical Journal of Australia (8 September 1928): 33-4. Ellis, Havelock. The Criminal. New York: Scribner and Welford, 1890. Freud, Beyond the Pleasure Principle. Vienna: International Psycho-Analytic Press, 1922. Freud, Sigmund. The Ego and the Id. Vienna: International Psycho-Analytic Press, 1923. Hale, Matthew. Historia Placitorum Coronae: History of the Pleas of the Crown (1736) vol. 1. London, 1736. Hume, Fergus. The Mystery of a Hansom Cab. Melbourne: Fergus Hume, 1886. James, John Stanley. The Vagabond Papers: Sketches of Melbourne Life in Light and Shade. Melbourne: George Robertson, 1876. Lombroso, Cesare. The Female Offender. New York: D. Appleton and Co., 1899. 257 Maudsley, Henry. Responsibility in Mental Disease. London: Henry King & Co., 1874. Prichard, James Cowles. A Treatise on Insanity and Other Disorders Affecting the Mind. London: Sherwood, Gilbert and Piper, 1836. Report, Royal Commission on Asylums for the Insane and Inebriate. Melbourne: Government Printer, 1886. Smith, Eliot and Tom Heatherly-Pear. Shell Shock and Its Lessons. Manchester: Manchester University Press, 1917. Springthorpe, J. W. ‘War Neuroses and Civil Practice.’ Medical Journal of Australia (4 October 1919): 280-84. Unknown author. The Complete History of the Windsor Tragedy. Melbourne: Mason, Firth and M’Cutcheon, 1892. Unknown author. The Criminal of the Century. Sydney: Australian Mining Standards Office, 1892. Unknown author. The Windsor and Rainhill Tragedies: The History of a Series of Great Crimes on Two Continents. Adelaide: Frearson’s, 1892. Secondary Sources Adair, Daryl, John Nauright and Murray Phillips. ‘Playing fields through to battle fields: The development of Australian sporting manhood in its imperial context, c. 1850-1918.’ Journal of Australian Studies vol. 22, no. 56 (1998): 51-67. Ainsley, Jill Newton. “Some Mysterious Agency’: Women, Violent Crime and the Insanity Acquittal in the Victorian Courtroom.’ Canadian Journal of History vol. 35, no. 1 (2000): 37-56. Allen, Judith. ‘The Trials of Abortion in Late Nineteenth and Early Twentieth Century Australia.’ Australian Cultural History vol. 12 (1993): 87-99. ———. Sex and Secrets: Crimes Involving Australian Women Since 1880. Oxford: Oxford University Press, 1990. ———. ‘Mundane Men: Historians, masculinity and masculinism.’ Australian Historical Studies vol. 28, no. 95 (1987): 617-628. 258 ———. ‘The Making of a Prostitute Proletariat in Early Twentieth-Century New South Wales.’ In So Much Hard Work: Women and Prostitution in Australian History, edited by Kay Daniels, 192-232. Sydney: Fontana Books, 1984. ———. 'The invention of the pathological family: a historical study of family violence in N.S.W.' In Family Violence in Australia, edited by Carol O'Donnell and Jan Craney, 1-27. Melbourne: Longman Pearson, 1982. ———. ‘Octavius Beale Reconsidered: Infanticide, Baby farming and Abortion in NSW 1880-1939.’ In What Rough Beast?: The State and Social Order in Australian History, edited by Sydney Labour History Group, 111-129. London: Allen and Unwin, 1982. Amster, Ellen. Medicine and the Saints: Science, Islam, and the Colonial Encounter in Morocco, 1877-1956. Austin: University of Texas Press, 2014. Anderson, Fay. ‘Collective Silence: Australian Press Reporting of Suffering during the World Wars.’ Journalism History vol. 40, no. 3 (2014): 148-157. Anderson, Jennifer. 'Using the Law: Working-Class Communities and Carnal Knowledge Cases in Victoria, 1900-06.' In Past Law, Present Histories, edited by Diane Kirkby, 85-106. Canberra: ANU press, 2012. Anderson, Warwick. The Cultivation of Whiteness: Science, Health and Racial Destiny in Australia. Melbourne: Melbourne University Press, 2002. Arnold, David. Colonizing the Body: State Medicine and Epidemic Disease in Nineteenth Century India. Berkeley: University of California Press, 1993. Arnot, Margaret. ‘Perceptions of Parental Child Homicide in English Popular Visual Culture, 1800-1850’. Law, Crime and History 7, 1 (2017): 16-74. Baird, Barbara. ‘The Self‐aborting Woman.’ Australian Feminist Studies vol. 13, no. 28 (1998): 323–337. Barber, Ross. ‘Rape as a Capital Offence in 19th Century Queensland.’ Australian Journal of Politics and History vol. 21, no. 1 (1975): 31-41. Bashar, Nazife. ‘Rape in England between 1550 and 1700.’ In The Sexual Dynamics of History: Men’s Power, Women’s Resistance, edited by The London Feminist History Group, 28-42. London: Pluto Press, 1983. Battams, Samantha. The Secret Art of Poisoning. Melbourne: Samantha Battams, 2019. ———. “The Incompetent, Barbarous Old Lady Round the Corner’: The Image of the Backyard Abortionist in Pro-Abortion Politics.’ Hecate vol. 22, no. 1 (1996): 7-26. 259 ———. ‘Abortion in South Australia before 1970: An Oral History Project.’ Lilith: A Feminist History Journal vol. 7 (1991): 113-129. Bavin-Mizzi, Jill. Ravished: Sexual violence in Victorian Australia. Sydney: University of New South Wales Press, 1995. ———. ‘Understandings of Justice: Australian Rape and Carnal Knowledge Cases, 18761924.’ In Sex, Power and Justice: Historical Perspectives of Law in Australia, edited by Diane Kirkby, 19-32. Melbourne: Oxford University press, 1995. Beattie, J. M. ‘The Criminality of Women in Eighteenth Century England.’ Journal of Social History no. 8, (1975): 80-116. Behlmer, George, 'Deadly Motherhood: Infanticide and Medical Opinion in Mid-Victorian England.' Journal of the History of Medicine and Allied Sciences vol. 34, no. 4 (1979): 403-427. Bell, Johnny. ‘Putting dad in the picture: Fatherhood in the popular women’s magazines of 1950s Australia.’ Women’s History Review vol. 22, no. 6 (2013): 904-929. ———. ‘Needing a woman’s hand: Child protection and the problem of lone fathers.’ History Australia vol. 9, no. 2 (2012): 90-110. Bellanta, Melissa. ‘The Leary Larrikin’: Street Style in Colonial Australia.’ Cultural and Social History vol. 11, no. 2 (2014): 263-283. Bennett, J. M. ‘The Royal Prerogative of Mercy—Putting in the Boots.’ Australian Law Journal vol. 81, no. 1 (2007): 35-47. Bessant, B. ‘Free, Compulsory and Secular Education: The 1872 Education Act, Victoria, Australia.’ Paedagogica Historica vol. 24, no. 1 (1984): 5-25. Bigwood, Rick. ‘The Undue Influence of ‘Non-Australian’ Undue Influence Law on Australian Undue Influence Law: Farewell Johnson v Buttress?’ Journal of Contract Law no. 35 (2018): 56-89. Birch, Helen. Moving Targets: Women, Murder and Representation. London: Virago Press, 1993. Blackhouse, Constance. 'Skewering the Credibility of Women: A Reappraisal of Corroboration in Australian Legal History.' Western Australian Law Review vol. 29 no. 1 (2000): 79-107. Blackhouse, Constance. “Her protests were unavailing’: Australian legal understandings of rape, consent and sexuality in the ‘roaring twenties.” Journal of Australian Studies vol. 24, issue 64 (2000): 14-33. 260 Blackmore, Kate. The Dark Pocket of Time: War, Medicine and the Australian State 19141935. Adelaide: Lythrum Press, 2008. Blainey, Geoffrey. A History of Victoria. Cambridge: Cambridge University Press, 2013. ———. The Rush That Never Ended: A History of Australian Mining. Melbourne: Melbourne University Press, 1963. Bode, Katherine. ‘Fictional Systems: Mass-Digitization, Network Analysis and Nineteenthcentury Australian Newspapers.’ Victorian Periodicals Review vol. 50, no. 1 (2017): 100-138. Bongiorno, Frank. The Sex Lives of Australians: A History. Melbourne: Black Ink, 2012. Bosworth, Mary. ‘The Past as a Foreign Country? Some Methodological Implications of Doing Historical Criminology.’ British Journal of Criminology vol. 41, no. 3 (2001): 431-442. ———. ‘Confining femininity: A history of gender, power and imprisonment.’ Theoretical Criminology vol. 4, no. 3 (2000): 265-284. Bourke, Joanna. ‘Sexual Violence, Bodily Pain and Trauma: A History.’ Theory, Culture & Society vol. 29, no. 3 (2012): 25-51. ———. Rape: A History from 1860 to present day. London: Virago, 2007. Braun, Heather L. The Rise and Fall of the Femme Fatale in British Literature, 1790-1910: From Gothic Novel to Vampire Tale. New Jersey: Farleigh Dickinson University Press, 2012. Brothers, Charles. Early Victorian Psychiatry. Melbourne: Government Printer, 1962. Brown, Beverly. ‘Women and crime: The dark figures of criminology.’ Economy and Society vol. 15, no. 3 (1986): 355-402. Brown, Thomas. ‘Dance of the Dialectic? Some reflections (polemic or otherwise) on the present state of nineteenth century asylum studies.’ Canadian Bulletin of Medical History vol. 11, no. 2 (1994): 267-295. Brownmiller, Susan. Against Our Will: Men, Women and Rape. Harmondsworth: Penguin, 1975. Bryant, Willow and Tracy Cussen. Homicide in Australia, 2010-11 to 2011-12: National Homicide Monitoring Program report. Canberra: Australian Institute of Criminology, 2015. Butler, Arthur G. Official History of the Australian Army medical Services in the War of 1914-1918, Vol. 3. Canberra: Australian War Memorial, 1943. 261 Butlin, N. Investment in Australian Economic Development, 1861-1900. Cambridge: Cambridge University Press, 2013. Bynum, Bill. ‘Discarded Diagnoses: Monomania.’ The Lancet no. 362 (2003): 1425. Cain, Maureen. ‘Realism, Feminism, Methodology and Law.’ International Journal for the Sociology of Law vol. 14 no. 3 (1986): 255-267. Cameron, Lindy and Ruth Wykes, eds. Women Who Kill: Chilling Portraits of Australia’s Worst Female Murderers. Melbourne: The Five Mile Press, 2010. Campbell, Morag Allen. ‘Noisy, restless and incoherent’: Puerperal insanity at Dundee Lunatic Asylum.’ History of Psychiatry vol. 28, no. 1 (2017): 44-57. Cannon, Michael. The women as murderer: Five who paid with their lives. Melbourne: Australia Publishing Company, 1994. Castle, Tim. ‘Watching them hang: Capital punishment and public support in colonial New South Wales, 1826-1836.’ History Australia vol. 5, no. 2 (2008): 43.5-43.15. Cawthorne, Nigel. Killer Women: Chilling, Dark and Gripping True Crime Stories of the Women Who Kill. London: Hachette, 2018. Chesney-Lind, Meda. ‘Chivalry re-examined: women and the criminal justice system.’ In Women, Crime and the Criminal Justice System, edited by L. H. Bowker, 197-223. Massachusetts: Lexington, 1978. Clark, Eileen. ‘Lessons from the past: Family involvement in patient admission and discharge, Beechworth lunatic asylum, 1900-1912.’ International Journal of Mental Health Nursing vol. 27, no. 1 (2018): 320-328. Clune, Frank. Scandals of Sydney Town. Sydney: Pacific Books, 1966. Coleborne, Catharine. Insanity, Identity and Empire: Immigrants and Institutional Confinement in Australia and New Zealand, 1873-1910. Manchester: Manchester University Press, 2016. Coleborne, Catharine. ‘White men and weak masculinity: Men in public asylums in Victoria, Australia and New Zealand, 1860s-1900s.’ History of Psychiatry vol. 25, no. 4 (2014): 468-476. ———. Madness in the family: Insanity and institutions in the Australasian colonial world, 1860-1914. Springer, 2009. ———. ‘Challenging Institutional Hegemony: Family visitors to hospitals for the insane in Australia and New Zealand, 1880s-1910s’. In Permeable Walls: Historical 262 Perspectives on Hospital and Asylum Visiting, edited by Graham Mooney and Jonathan Reinarz, 289-308. Clio Medica online, 2009. ———. ‘Families, Insanity and the Psychiatric Institution in Australia and New Zealand, 1860-1914.’ Health and History vol. 11, no. 1 (2009): 65–82. ———. Reading Madness: Gender and difference in the colonial asylum in Victoria, Australia, 1848-1888. Perth: API network, 2007. ———. ‘Families, Patients and Emotions: Asylums for the Insane in Colonial Australia and New Zealand, c. 1880-1910.’ Social History of Medicine 19, 3 (2006): 425–42 ———. ‘His brain was wrong, his mind astray: Families and the language of insanity in New South Wales, Queensland and New Zealand, 1880s-1910’ Journal of Family History 31, 1 (2006): 45-65 ———. 'Making 'Mad' Populations in Settler Colonies: The Work of Law and Medicine in the Creation of the Colonial Asylum.’ In Law, History, Colonials: The Reach of Empire, edited by Diane Kirkby and Catharine Coleborne, 106-122. Manchester: Manchester University Press, 2001. ———. “She does up her hair fantastically”: The production of femininity in patient casebooks of the lunatic asylum in 1860s Victoria.’ In Forging Identities: Bodies, Gender and Feminist History, edited by J. Long and H. Brash, 47-68. Perth: University of Western Australia Press, 1997. Coleman, Jenny. ‘Incorrigible Offenders: Media representations of female habitual criminals in the late Victorian and Edwardian press.’ Media History vol. 22, no. 2 (2016): 143158. Colligan, Mimi. ‘Waxworks shows and some of their proprietors in Australia, 1850s-1910s.’ Australasian Drama Studies vol. 1, no. 34 (1999): 87. Collins, Anne-Maree. 'Testimonies of Sex: Rape in Queensland, 1880-1919.' Journal of Australian Studies vol. 15, no. 29 (1991): 50-63. Conor, Liz. The Spectacular Modern Woman: Feminine Visibility in the 1920s. Indiana: Indiana University Press, 2004. Connell, R. W. ‘Introduction: Studying Australian Masculinities.’ Journal of Interdisciplinary Gender Studies vol. 3, no. 2 (1998): 1-8. ———. Masculinities. Sydney: Allen & Unwin, 1995. 263 Connors, Libby. ‘Uncovering the Shameful: Sexual Violence on an Australian Colonial Frontier.’ In Legacies of Violence: Rendering the Unspeakable Past in Modern Australia, edited by Robert Mason, 33-53. New York: Berghan Books, 2017. Crotty, Martin. ‘The RSL and Post-First World War Returned Soldier Violence in Australia.’ In Legacies of Violence: Rendering the Unspeakable Past in Modern Australia, edited by Robert Mason, 185-199. New York: Berghan, 2017. ———. ‘The Returned Sailors’ and Soldiers’ Imperial League of Australia, 1916-1946.’ In Anzac Legacies: Australians and the Aftermath of War, edited by Martin Crotty and Marina Larsson, 166-186. Australian Scholarly Publishing: Melbourne, 2010. ———. Making the Australian Male: Middle-Class Masculinity 1870-1920. Melbourne: Melbourne University Press, 2001. Crotty, Martin and Mark Edele. ‘Total War and Entitlement: Towards a Global History of Veteran Privilege.’ Australian Journal of Politics and History vol. 59 no. 1 (2013): 15-32. Crowley-Cyr, Lynda. ‘The Incarceration Archipelago of Lunacy ‘Reform’ Enterprises: An Epochal Overview.’ James Cook University Law Review vol. 12 (2005): 33. Damousi, Joy. ‘John Springthorpe’s War.’ The La Trobe Journal no. 96 (2015): 103-116. ———. ‘Australian Medical Intellectuals and the Great War.’ Australian Journal of Politics and History vol. 53, no. 3 (2007): 436-450. Damousi, Joy. Freud in the Antipodes. Sydney: University of New South Wales Press, 2005. Damousi, Joy and Marilyn Lake, eds. Gender and War: Australians at War in the Twentieth Century. Melbourne: Melbourne University Press, 1995. Davies, Susanne. ‘Women, War and the Violence of History: An Australian perspective.’ Violence Against Women vol. 2, no. 4 (1996): 359-377. ———. ‘Captives of Their Bodies: Women, Law and Punishment, 1880s-1980s.’ In Sex, Power and Justice: Historical Perspectives on Law in Australia, edited by Diane Kirkby, 99-115. Oxford: Oxford University Press, 1995. ———. ‘Working their way to respectability: Women, vagrancy and reform in late nineteenth century Melbourne.’ Lilith no. 6 (1989): 50-63. Davison, Graeme. ‘Rethinking the Australian Legend.’ Australian Historical Studies vol. 43, no. 3 (2012): 429-451 ———. The Rise and Fall of Marvellous Melbourne. Melbourne: Melbourne University Press, 1978. 264 ———. ‘Sydney and the Bush: An urban context for the Australian Legend.’ Historical Studies vol. 18, no. 71 (1978): 191-209. Davison, Graeme, John Hirst and Stuart Macintyre, eds. The Oxford Companion to Australian History. Melbourne: Oxford University Press, 2001. Decker, Hannah. ‘How Kraepelinian was Kraepelin? How Kraepelinian are the neoKraepelin’s? From Emil Kraepelin to DSMI-III.’ History of Psychiatry vol. 18, no. 3 (2007): 337-360. Dixon, Miriam. The Real Matilda. Melbourne: Penguin, 1976. Dobbie, Meredith, Ruth Morgan and Lionel Frost. ‘Overcoming Abundance: Social Capital and Managing Floods in Inner Melbourne during the Nineteenth Century.’ Journal of Urban History vol. 46, no. 1 (2020): 33-49. Dobbing, Cara. ‘The Family and Insanity: The experience of the Garlands Asylum, 18621910.’ In Family Life in Britain, 1650-1910, edited by Carol Beardmore, Cara Dobbing and Steven King, 135-154. Palgrave: 2019. Douglas, Richard and Kathy Laster. 'A Matter of Life and Death: The Victorian Executive and the Decision to Execute 1842- 1967.' Australia and New Zealand Journal of Criminology vol. 24, no. 2 (1991): 144-160. Doyle, David M. and Liam O’Callaghan, Capital punishment in independent Ireland: A social, legal and political history. Oxford: Oxford University Press, 2020. Du Plessis, Rory. ‘Beyond a clinical narrative: Casebook photographs from the Grahamstown Lunatic Asylum, c. 1890s.’ Critical Arts vol. 29, no. 1 (2015): 88-103. Dunk, James. Bedlam at Botany Bay. Sydney: NewSouth, 2019. Dunk, James. ‘Work, paperwork and the imaginary Tarban Creek Lunatic Asylum, 1846.’ Rethinking History vol. 22, no. 3 (2018): 326-355. Dunstan, David. ‘The Argus: The life, death and remembering of a great Australian newspaper.’ In Argus: The Life and Death of a Great Melbourne Newspaper 18461957, edited by Muriel Porter, 3-15. Melbourne: RMIT Publishing, 2003. Durnian, Lisa. ‘Police practice and judge’s rules, 1926-1961.’ Law and History vol. 5, no. 2 (2018): 55-85. Eigen, Joel. Witnessing Insanity: Madness and Mad-Doctors in the English Court. New Haven: Yale University Press, 1995. Eigen, Joel. Unconscious Crime: Mental Absence and Criminal Responsibility in Victorian London. Baltimore: John Hopkins University Press, 2003. 265 Elder, Catriona. “The question of the unmarried’: Some meanings if being single in Australia in the 1920s and 1930s. Australian Feminist Studies vol. 8, no. 18 (1993): 151-173. Ellery, Reginald. The Cow Jumped over the Moon: Private Papers of a Psychiatrist. Melbourne: FW Cheshire, 1956. Engstrom, Eric. ‘Topographies of forensic practice in Imperial Germany.’ International Journal of Law and Psychiatry vol. 37, no. 1 (2014): 63-70. Evans, Raymond and Bill Thorpe. ‘Commanding men: Masculinities and the convict system.’ Journal of Australian Studies vol. 22, no. 56 (1998): 17-34. Fairburn, Miles. The Ideal Society and Its Enemies: The Foundation of Modern New Zealand Society, 1850-1900. Auckland: Auckland University Press, 1989. Featherstone, Lisa. 'Pathologising White Male Sexuality in late Nineteenth-Century Australia through the medical prism of excess and constraint.' Australian Historical Studies vol. 41, no. 3 (2010): 337-351. Featherstone, Lisa and Andy Kaladelfos, Sex Crimes in the Fifties. Melbourne: Melbourne University Press, 2016. Feimster, Crystal N. Southern Horrors: Women and the Politics of Rape and Lynching. Cambridge: Harvard University Press, 2009. Feltham, J. D. ‘The Common Law and the Execution of Insane Criminals.’ Melbourne University Law Review vol. 4 (1964): 434-475. Field, C. and Jeff Giddings. ‘A History of Legal Aid in Victoria.’ In Legal Aid in Victoria: At the Crossroads Again, edited by Jeff Giddings, 13-23. Melbourne: Fitzroy Legal Service 1998. Ferguson, Kathryn. ‘You don’t know Jack.’ Journal of Australian Studies vol. 28, no. 84 (2005): 53-62 Finnane, Mark, Andy Kaladelfos and Alana Piper. ‘Sharing the archive: Using web technologies for accessing, storing and re-using historical data.’ Methodological Innovations vol. 11, no. 2 (2018): 1-11. Finnane, Mark and Yorrick Smaal. ‘The Prosecution Project: Using crime records to access family and other histories.’ Queensland Review vol. 25, no. 1 (2018): 89-101. Finnane, Mark and Alana Piper. ‘The Prosecution Project: Understanding the changing criminal trial through digital tools.’ Law and History Review vol. 34, no. 4 (2016): 873-891. 266 Finnane, Mark. “Irresistible impulse’: Historicizing a judicial innovation in Australian insanity jurisprudence.’ History of Psychiatry vol. 23, no. 4 (2012): 454-468. ———. ‘The origins of criminology in Australia.’ Journal of Criminology vol. 45, no. 2 (2012): 157-178. ———. ‘The ruly and unruly: Isolation and inclusion in the management of the insane.’ In Isolation: Places and Practices of Exclusion, edited by Alison Bashford and Carolyn Strange, 93-108. London: Routledge, 2003. ———. Punishment in Australian Society. Melbourne: Oxford University Press, 1997. Fletcher, George. Rethinking Criminal Law. Oxford: Oxford University Press, 2000. Foucault, Michel. Discipline and Punish: The Birth of the Prison. Penguin: London, 1991. Foucault, Michel. Birth of the Clinic: An Archaeology of Medical Perception. London: Routledge, 1989. ———. ‘Afterword: The subject and power.’ In Michel Foucault: Beyond Structuralism and Hermeneutics, edited by H. Dreyfus and P. Rabinow, 208-212. The Harvester Press: Brighton, 1982. ———. The Will to Knowledge: The History of Sexuality Volume 1. New York: Pantheon, 1978. ———. 'About the concept of the 'dangerous individual' in nineteenth-century legal psychiatry.' International Journal of Law and Psychiatry vol. 1, no. 1 (1978): 1-18. Franks, Rachel. ‘A criminal record: Women and Australian true crime stories.’ Online piece for the Conversation published 7 Nov 2017, accessed 20 June 2019. Freeman, Estelle B. Redefining Rape: Sexual Violence in the era of Suffrage and Segregation. Cambridge, Massachusetts: Harvard University Press, 2013. Freiberg, Arlie. ‘The disposition of mentally disordered offenders in Australia: ‘Out of mind, out of sight’ revisited.’ Psychiatry, Psychology and Law vol. 1, no. 2 (1994): 97-118. ———. “Out of Mind, out of sight’: The disposition of mentally disordered persons involved in criminal proceedings.’ Monash University Law Review vol. 3, no. 2 (1976): 134172. Gammage, Bill. The Broken Years: Australian Soldiers in the Great War. Canberra: Australian National University Press, 1974. Gandevia, Bryan. 'Neild, James Edward (1824–1906)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, 267 http://adb.anu.edu.au/biography/neild-james-edward-4288/text6939, published first in hardcopy 1974, accessed online 25 July 2020. Gardiner, Diane. ‘Bigamy, Theft and Murder: The tale of Frederick Bailey Deeming.’ Agora vol. 42, no. 1 (2007): 20-23. Garton, Stephen. ‘The Scales of Suffering: Love, Death and Victorian Masculinity.’ Social History vol. 27, no. 1 (2002): 40-58. ———. The Cost of War: Australians Return. Oxford: Oxford University Press, 1996. ———. ‘War and masculinity in twentieth century Australia.’ Journal of Australian Studies vol. 22, no. 56 (1998): 86-95. ———. ‘Sound Minds and Healthy Bodies: Reconsidering Eugenics in Australia, 19141940.’ Australian Historical Studies vol. 16, no. 103 (1994): 163-181. ———. Medicine and madness: a social history of insanity in New South Wales, 1880-1940. Sydney: UNSW Press, 1988. ———. 'The Rise of the Therapeutic State: Psychiatry and the System of Criminal Jurisdiction in New South Wales, 1880-1940.' Australian Journal of Politics and History vol. 32, no. 3 (1986): 378-388. Gelsthorpe, Loraine and Allison Morris. ‘Feminism and Criminology in Britain.’ The British Journal of Criminology vol. 28, no. 2 (1988): 93-110. Germann, Urs. ‘Psychiatrists, criminals and the law: Forensic psychiatry in Switzerland 1850-1950.’ International Journal of Law and Psychiatry vol. 37 no. 1(2014): 91-98. Gibson, Mary. ‘Forensic psychiatry and the birth of the criminal insane asylum in modern Italy.’ International Journal of Law and Psychiatry vol. 37 no. 1 (2014): 117-126. Giese, Jillian Fay. The Maddest Place on Earth. North Melbourne: Australian Scholarly Publishing, 2018. Gleeson, Kate. ‘White natives and gang rape at the time of the centenary.’ In Outrageous! Moral Panics in Australia, edited by Scott Poynting and George Morgan, 171-180. Hobart: ACYS Publishing, 2007. ———. ‘From Centenary to the Olympics, Gang Rape in Sydney.’ Current Issues in Criminal Justice vol. 16, no. 2 (2004): 183-201. Goc, Nicola. Women, Infanticide and the Press 1822-1922: News Narratives from England and Australia. Surrey: Ashgate, 2013. 268 Goldstein, Jan. ‘Professional Knowledge and Professional Self-Interest: The Rise and Fall of Monomania in 19th-Century France.’ International Journal of Law and Psychiatry vol. 21, no. 4 (1998): 385-396. Gonaver, Wendy. The peculiar institution and the making of modern psychiatry, 1840-1880. Chapel Hill: University of North Carolina Press, 2018. Goodall, Heather. Invasion to embassy: Land in Aboriginal politics in New South Wales, 1770-1972. St Leonards: Allen and Unwin, 1996. Graff, Harvey J. The Legacies of Literacy: Continuities and Contradictions in Western Culture and Society. Indiana: Indiana University Press, 1987. Greenwood, Janet. ‘Women at Risk: Rape in Western Australia in the Nineteenth Century.’ In The Murdoch Ethos: Essays in Australian History in Honour of Foundation Professor Geoffrey Bolton, edited by Rae Frances and Bruce Scates, 172-189. Perth: Murdoch University Press, 1981. Greenwood, Kerry ed. The Thing She Loves: Why Women Kill. Sydney: Allen & Unwin, 1996. Grey, Daniel. “Agonised Weeping': Representing Femininity, Emotion and Infanticide in Edwardian Newspapers.' Media History vol. 21, no. 4 (2015): 468-480. Grimshaw, Patricia. ‘Gender, citizenship and race in the Women’s Christian Temperance Union of Australia, 1890 to the 1930s.’ Australian Feminist Studies vol. 13, no. 28 (1998): 199-214. Haebich, Anna. Broken Circles: Fragmenting Indigenous Families 1800-2000. Fremantle: Fremantle Arts Centre Press, 2000. Haldane, Robert. The People’s Force: A History of the Victoria Police. Melbourne: Melbourne University Press, 1995. Hall, Alan Ross. The Stock Exchange of Melbourne and the Victorian Economy, 1852-1900. Canberra: Australian National University Press, 1968. Hammerton, A. J. Cruelty and Companionship. London: Routledge, 1992. Hanson, Helen and Catherine O’Rawe, eds. The Femme Fatale: Images, Histories, Contexts. London: Palgrave Macmillan, 2010. Harris, Carmel. “The terror of the law’ as applied to black rapists in Queensland.’ Hecate vol. 8, no. 2 (1982): 22-48. Harris, Ruth. Murders and Madness: Medicine, Law and Society in the Fin de Siecle. Oxford: Clarendon Press, 1989. 269 ———. ‘Melodrama, hysteria and feminine crimes of passion in the fin de siecle.’ History Workshop Journal no. 25 Spring (1988): 31-63. Harris, Ruth. 'Murder under hypnosis.' Psychological Medicine vol. 15, no. 3 (1985): 477-505 Harrison, Richard. ‘The Legal Profession in Colonial Victoria: Information held in records of admission by the Public Record Office Victoria.’ Provenance no. 13 (2014): 59-65. Haskins, Victoria. 'A better chance?' Sexual abuse and the apprenticeship of Aboriginal girls under the NSW Aborigines Protection Board.' Aboriginal History no. 28 (2004): 3358. Hawk, Angela. 'Going 'Mad' in Gold Country: Migrant Populations and the Problem of Containment in Pacific Mining Boom Regions.' Pacific Historical Review vol. 80, no. 1 (2011): 64-96. Higginbotham, Ann. “Sin of the Age’: Infanticide and Illegitimacy in Victorian London.’ Victorian Studies vol. 32, no. 3 (1989): 319-337. Hogan, Ashley. “I never noticed she was dirty’: Fatherhood and the death of Charlotte Duffy in Late-Nineteenth-Century Victoria.’ Journal of Family History vol. 24, no. 3 (1999): 305-316. Holledge, James. Australia’s Wicked Women. Melbourne, Horwitz Publications, 1963. Hopper, Peter. ‘Melbourne’s Peace Day Riots, July 1919.’ Sabretache vol 50, no. 1 (2009): 29-32. Horder, Jeremy. Provocation and Responsibility. Oxford: Clarendon Press, 1992. Horton, Jessica. ‘Rewriting Political History: Letters from Aboriginal people in Victoria, 1886-1919.’ History Australia vol. 9, no. 2 (2012): 157-182. Hossain, Samia. 'Antipodean Intimacies: Medical Sex Advice for Women in the Australian Colonies, 1857-1890.' Australian Feminist Studies vol. 22, no. 52 (2007): 89-105. Howard, Colin. ‘Provocation and Homicide in Australia,’ The Australian Law Journal no. 33 (1960): 323-330. Howe, Renate. ‘Agents of Change: Women’s social reform networks in Melbourne.’ Victorian Historical Journal vol. 79, no. 2 (2008): 328-339. Hynd, Stacey. ‘Killing the condemned: the practices and process of capital punishment in British Africa, 1900-1950s.’ Journal of African History vol. 49, no. 3 (2008): 403418. 270 Hyslop, Anthea. ‘Temperance, Christianity and feminism: The Women’s Christian Temperance Union of Victoria, 1887-97.’ Australian Historical Studies vol. 17, no. 66 (1976): 27-49. Jablensky, Assen. ‘Living in a Kraepelinian world: Kraepelin’s impact on modern psychiatry.’ History of Psychiatry vol. 18, no. 3 (2007): 381-388. Jackson, Louise A. Child Sexual Abuse in Victorian England. London and New York: Routledge, 2000. John, Clement and Jacqui Rees. The Last Shilling: A History of Repatriation in Australia. Melbourne: Melbourne University Press, 1994. Jones, Ann. Women Who Kill. New York, Fawcett Columbine, 1982. Jones, Barry, ed. The Penalty is Death: Capital Punishment in the Twentieth Century. Sun Books, 1968. Jones, Barry O. ‘Deeming, Frederick Bailey (1853-1892).’ Australian Dictionary of Biography vol. 8. Melbourne: Melbourne University Press, 1981. Jones, David W. 'Moral insanity and psychological disorder: the hybrid roots of psychiatry.' History of Psychiatry vol. 28, no. 3 (2017): 263-279. Judge, Cliff and Roma Emmerson. ‘Dr John Fishbourne: Vociferous Parent for the Handicapped.’ Medical Journal of Australia vol. 2, no. 8 (1977): 255-259. Kaladelfos, Andy. ‘The dark side of the family: Paternal child homicide in Australia.’ Journal of Australian Studies vol. 37, no. 3 (2013): 333-348. ———. 'The Politics of Punishment: Rape and the death penalty in colonial Australia, 18411901.' History Australia vol. 9, no. 1 (2012): 155-175. ———. ‘The ‘Condemned Criminals’: Sexual violence, race and manliness in colonial Australia.’ Women’s History Review vol. 21, no. 5 (2012), 697-741. Kaplan, Robert. ‘Reg Ellery and the Establishment of Psychoanalysis in Australia.’ Health and History vol. 17, no. 1 (2015): 37-52. ———. ‘Psychiatry gadfly: In search of Reginald Ellery.’ Australasian Psychiatry vol. 20, no. 1 (2012): 7-13. ———. ‘Freud’s excellent adventure Down Under: The only publication in Australia by the founder of psychoanalysis.’ Australasian Psychiatry vol. 18, no. 3 (2010): 205-209. Karageorgos, Effie. ‘Mental Illness, Masculinity and the Australian Soldier: Military Psychiatry from South Africa to the First World War.’ Health and History vol. 20, no. 2 (2018): 10-29. 271 Kehler, Lyle. A Search for Power: The ‘Weaker’ Sex in Seventeenth-Century New England. Urbana: University of Illinois Press, 1980. Kelleher, Michael and C. L. Kelleher. Murder Most Rare: The Female Serial Killer. Connecticut: Dell, 1998. Keller, Richard. Colonial Madness: Psychiatry in French North Africa. Chicago: University of Chicago Press, 2007. Kidd, Paul B. Australia’s Most Evil Women. Melbourne: Five Mile Press, 2013. ———. Australia’s Serial Killers. Melbourne: Macmillan, 2011. Kimber, Julie. “A nuisance to the community’: Policing vagrant women.’ Journal of Australian Studies vol. 34, no. 3 (2010): 275-293. Kirkby, Kenneth C. ‘History of Psychiatry in Australia, pre-1960.’ History of Psychiatry vol. 10, no. 38 (1999): 191-204. Klein, Dorie. ‘The etiology of female crime: A review of the literature.’ Issues in Criminology no. 8 (1973): 3-30. Klein, Dorie and June Kress. ‘Any woman’s blues: A critical overview of women, crime and the criminal justice system.’ Crime and Social Justice no. 5 (1976): 34-49. Kristianson, G. L. The Politics of Patriotism: The Pressure Group Activities of the Returned Servicemen’s League. Canberra: Australian National University Press, 1966). Labrum, Bronwyn. ‘The Boundaries of Femininity: Madness and Gender in New Zealand, 1870-1910.’ In Women, Madness and the Law: A Feminist Reader, edited by Wendy Chan, Dorothy E. Chunn, and Robert Menzies, 59-77. London: Glass House, 2005. Lake, Marilyn. ‘Mission Impossible: How Men Gave Birth to the Australian Nation– Nationalism, Gender and Seminal Acts.’ Gender and History vol. 4, no. 3 (1992): 305-322. ———. 'Historical reconsiderations IV: The politics of respectability: Identifying the masculinist context.' Australian Historical Studies vol. 22, no. 86 (1986): 116-131. Lambe, Jennifer. Madhouse: Psychiatry and Politics in Cuban History. Chapel Hill: University of North Carolina Press, 2017. Lardner, Andrew and John Paul Leach. ‘Phineas Gage and the beginnings of Neuropsychology.’ History of Neurology & Neuroscience vol. 2, no. 3 (2002): 26. Larsson, Marina. Shattered Anzacs: Living with the Scars of War. Sydney: University of New South Wales Press, 2009. 272 ———. ‘Families and Institutions for Shell-Shocked Soldiers in Australia after the First World War’ Social History of Medicine vol. 22, no. 1 (2009): 97-114. Laster, Kathy. 'Arbitrary Chivalry: Women and Capital Punishment in Victoria, Australia 1842-1967.' Women & Criminal Justice vol. 6, no. 1 (1994): 67-95. ———. 'Infanticide: A Litmus Test for Feminist Criminological Theory.' Australia and New Zealand Journal of Criminology vol. 22 (1989): 151-166. Law, Jonathan, ed. Oxford Dictionary of Law 9th ed. London: Oxford University Press, 2018. Lawson, Olive. The First Voice of Australian Feminism: Excerpts from Louisa Lawson’s The Dawn 1888-1895. Sydney: Simon & Schuster, 1990. Lennan, Jo and George Williams. ‘The Death Penalty in Australian Law.’ Sydney Law Review vol. 34, no. 4 (2012): 659-694. Leoni, Federico. ‘From Madness to Mental Illness: Psychiatry and Biopolitics in Michel Foucault.’ In The Oxford Handbook of Philosophy and Psychiatry, edited by K. W. Fulford, Martin Davies, Richard Gipps, George Graham, John Sadler, Giovanni Stranghellini and Tim Thornton, 85-98. New York: Oxford University Press, 2013. Lewis, Milton. Managing Madness: Psychiatry and Society in Australia 1788-1980. Canberra: Australian Institute of Health, 1988. Lorcin, P. M. E. 'Imperialism, Colonial Identity and Race in Algeria, 1830-1870: The Role of the French Medical Corps.' Isis vol. 90, no. 4 (1999): 653-67. Loughnan, Arlie, and Tony Ward. ‘Emergent authority and expert knowledge: Psychiatry and criminal responsibility in the UK.’ International Journal of Law and Psychiatry vol. 37, no. 1 (2014): 25-36. Loughnan, Arlie. ‘Towards a New Understanding of the Insanity Defence.’ Modern Law Review vol. 70, no. 3 (2007): 379-401. Macdonald, Charlotte. ‘Crime and Punishment in New Zealand, 1840-1913: A gendered history.’ New Zealand Journal of History vol. 23, no. 1 (1989): 5-21. MacDonald, Michael. Mystical Bedlam: Madness, Anxiety and Healing in Seventeenth Century England. Cambridge: Cambridge University Press, 1981. Macleod, Sandy. ‘Australasian contributions to the ‘shell shock’ literature of World War I.’ Australasian Psychiatry vol. 23, no. 4 (2015): 396-398. Magarey, Susan. Passions of the First Wave Feminists. Sydney: UNSW Press, 2001. 273 Marland, Hilary. ‘Languages and Landscapes of Emotion: Motherhood and Puerperal Insanity in the Nineteenth Century.’ In Medicine, Emotion and Disease, 1700-1950, edited by Fay Bound Aberti, 53-78. London: Palgrave Macmillan, 2006. ———. ‘Getting away with murder? Puerperal insanity, infanticide and the defence plea.’ In Infanticide: Historical Perspectives on Child Murder and Concealment, 1550-2000, edited by Mark Jackson, 168-192. Vermont: Ashgate Publishing, 2002. Marsh, Margaret. ‘Suburban Men and Masculine Domesticity, 1870-1915.’ American Quarterly vol. 40, no. 2 (1988): 165-186. Matthews, Jill Julius. ‘Ballroom Tragedy, Court Melodrama: The Case of Audrey Jacob.’ In Why Women Kill, edited by Kerry Greenwood, 30-43. St Leonards: Allen & Unwin, 1996. McCallum, David. ‘The Theory of Social Differences in Early Twentieth Century Education in Victoria.’ Discourse vol. 5, no. 1 (1984): 33-35. McCalman, Janet. Struggletown: Public and Private Life in Richmond 1900-1965. Melbourne: Melbourne University Press, 1984. McCarty, J. ‘Australian Capital Cities in the Nineteenth Century.’ In Urbanization in Australia: The Nineteenth Century, edited by in J McCarty and B Schedvin (Sydney, 1974). McConville, Chris. ‘Melbourne Crime: From War to Depression, 1919-1929.’ Australian Dictionary of Biography, http://adb.anu.edu.au/essay/6/text28416, originally published 23 May 2013, accessed 27 July 2020. McConville, Chris. ‘Rough women, respectable men and social reform: A response to Lake’s ‘masculinism.” Australian Historical Studies vol. 22, no. 88 (1987): 432-440. ———. ‘The location of Melbourne’s prostitutes, 1870-1920.’ Australian Historical Studies vol. 19, no. 74 (1980): 86-97. McGowen, Randall. ‘The body and punishment in eighteenth-century England.’ The Journal of Modern History vol. 59, no. 4 (1987): 652-679. Meadmore, Peter. ‘Free, compulsory and secular? The re-invention of Australian public education’ Journal of Education Policy vol. 16, no. 2 (2001): 113-125. Memon, Rafiq. ‘Legal theory and case law: Defining the insanity defence in English and Welsh Law.’ Journal of Forensic Psychiatry & Psychology vol. 17, no. 2 (2006): 230252. 274 Miller, Henry. ‘Petition! Petition!! Petition!!! Petitioning and political organization in Britain, c. 1800-1850.’ In Organizing Democracy: Reflections on the Rise of Political Organizations in the Nineteenth Century, edited by Henk te Velde and Maartje Janse, 43-61. Palgrave Macmillan, Cham, 2017. Mindham, Ris. ‘The Glasgow Asylum of 1810: Psychiatry in pictures.’ The British Journal of Psychiatry vol. 214, no. 5 (2019): 314-341. Mitchell, Piers D. ‘Retrospective diagnosis and the use of historical texts for investigating disease in the past.’ International Journal of Paleopathology no. 1 (2011): 81-88. Monk, Lee-Ann. ‘Working in the Asylum: Attendants to the Insane.’ Health and History no. 11 (2009): 83-101. Moore, Clive. ‘Guest Editorial: Australian masculinities.’ Journal of Australian Studies vol. 22, no. 56 (1998): 1-16. ———. ‘Colonial Manhood and Masculinities.’ Journal of Australian Studies vol. 22, no. 56 (1998): 35-50. Moran, James E. ‘Mental disorder and criminality in Canada.’ International Journal of Law and Psychiatry vol. 37 no. 1 (2014): 109-16. Moran, Richard. ‘The origin of insanity as a special verdict: The trial for treason of James Hadfield (1800).’ Law and Society Review vol. 19 (1985): 487-519. Morris, Madeline. ‘By Force of Arms: Rape, War and Military Violence.’ Duke Law Journal 45, 4 (1996): 651-781. Morrison, Elizabeth. David Syme: Man of the Age. Melbourne: Monash University Publishing, 2014. ———. ‘David Syme’s role in the rise of the Age’ Victorian Historical Journal 84, 1 (2013): 16-33. Mukherjee, S. K. Source book of Australian Criminal and Social Statistics 1804-1988. Canberra: Australian Institute of Criminology, 1988. Muramoto, Osamu. ‘Retrospective diagnosis of a famous historical figure: ontological, epistemic, and ethical considerations.’ Philosophy, Ethics and Humanities in Medicine vol. 9, no. 10 (2014): 1-15. Murphy, Kate. ‘The ‘Most Dependable Element of Any Country’s Manhood’: Masculinity and Rurality in the Great War and its Aftermath.’ History Australia vol. 5, no. 3 (2008): 72.1-72.20 Murray, James. Larrikins: 19th Century Outrage. Melbourne: Lansdowne Press, 1973. 275 Murrie, Linzi. ‘The Australian Legend: Writing Australian masculinity/writing ‘Australian’ masculine.’ Journal of Australian Studies vol. 22, no. 56 (1998): 68-77. Nagy, Victoria and Georgina Rychner. ‘Longitudinal Analysis of Australian Filicide Perpetration Trends: Filicide in Victoria, 1860-1902.’ International Journal for Crime, Justice and Social Democracy 9, 4 (2021). Advance online publication. https://doi.org/10.5204/ijcjsd.1642. ———. ‘Homicide in Victoria: Female perpetrators of murder and manslaughter, 18601920.’ Journal of Interdisciplinary History (2021): 1-24. ———. Nineteenth-Century Female Poisoners: Three English women who used arsenic to kill. London: Palgrave MacMillan, 2015. Nelson, Elizabeth. Homefront Hostilities: The First World War and Domestic Violence. Melbourne: Australian Scholarly Publishing, 2014. ———. 'Victims of War: The First World War, Returned Soldiers and Understandings of Domestic Violence in Australia.' Journal of Women's History vol. 19, no. 4 (2007): 86-106. ———. 'Civilian Men and Domestic Violence in the Aftermath of the First World War.’ Journal of Australian Studies vol. 27, no. 76 (2003): 97-108. Nielson, Olivia. ‘Sharing our nation’s treasures: Digitisation at the National Library of Australia.’ Access vol. 24, no. 2 (2010): 10-15. Nye, Robert. Crime, Madness and Politics in Modern France. Princeton: Princeton University Press, 1984. Oosterhuis, Harry. ‘Treatment as Punishment: Forensic psychiatry in the Netherlands (18702005).’ International Journal of Law and Psychiatry vol. 37 no. 1 (2014): 37-49. Oosterhuis, Harry and Arlie Loughnan. ‘Madness and crime: Historical perspectives on forensic psychiatry.’ International Journal of Law and Psychiatry vol. 37, no. 1 (2014): 1-16. O’Donovan, K. ‘The Medicalisation of Infanticide.’ Criminal Law Review (1984): 259-264. O’Sullivan, J. S. A Most Unique Ruffian. Melbourne: Melbourne University Press, 1968. Parkinson, J. P. ‘The Castle Hill Lunatic Asylum (1811-1826) and the origins of eclectic pragmatism in Australian psychiatry.’ Australian and New Zealand Journal of Psychiatry vol. 15, no. 4(1981): 319-322. Peers, Juliet. “Accept Any Woman’s Word?’ Rape and Republicanism: The body beneath the foundation stone.’ Journal of Australian Studies vol. 20, no. 47 (1996): 123-146. 276 Peers, Juliet. ‘The Tribe of Mary Jane Hicks: Imagining women through the Mount Rennie rape case 1886.’ Australian Cultural History no. 12 (1993): 127-144. Pescod, Keith. ‘Irish Participation in Victoria’s union movement, 1850-1900.’ Australasian Journal of Irish Studies no. 11 (2011): 7-27. Philadelphoff-Puren, Nina. ‘Reading Rape in Colonial Australia: Barbara Baynton’s ‘The Tramp’, The Bulletin and Cultural Criticism.’ Journal of the Association for the Study of Australian Literature no. 1 (2010): 1-14. Phillips, David. ‘Anatomy of a Rape Case, 1888: Sex, race, violence and criminal law in Victoria.’ In A Nation of Rogues? Crime, Law and Punishment in Colonial Australia, edited by David Phillips and Susanne Davies, 97-192. Melbourne: Melbourne University Press, 1994. Pickering, Paul A. ‘Ripe for a Republic’: British radical responses to the Eureka stockade’ Australian Historical Studies 34, 121 (2003): 69-9. ———. ‘And Your Petitioners & c’: Chartist Petitioning in Popular Politics 1838-48.’ The English Historical Review vol. 116, no. 466 (2001): 368-388. Pined, Alex. The World’s Most Lethal Ladies. South Carolina: Shaharm Publications, 2015. Pinto, Sarah. Lunatic Asylums in colonial Bombay: Shackled bodies, unchained minds. Melbourne: Palgrave Macmillan, 2018. Piper, Alana and Ana Stevenson. Gender Violence in Australia: Historical Perspectives. Melbourne: Monash University Publishing, 2019. Piper, Alana and Mark Finnane. ‘Defending the Accused: The impact of legal representation on criminal trial outcomes in Victoria, Australia 1861-1961.’ The Journal of Legal History vol. 38, no. 1 (2017): 27-53. Piper, Alana and Victoria Nagy. ‘Imprisonment of Female Urban and Rural Offenders in Victoria, 1860-1920.’ The International Journal for Crime, Justice and Social Democracy vol. 8, no. 1 (2019): 100-115. ———. ‘Risk Factors and Pathways to Imprisonment among Incarcerated Women in Victoria: 1860-1920.’ Journal of Australian Studies vol. 42, no. 3 (2018): 268-284. ———. ‘Versatile Offending: Criminal Careers of Female Prisoners in Australia, 18601920.’ Journal of Interdisciplinary History vol. 48, no. 2 (2017): 187-210. Piper, Alana and Lisa Durnian. ‘Theft on trial: Prosecution, conviction and sentencing patterns in colonial Victoria and Western Australia.’ Australian and New Zealand Journal of Criminology vol. 50, no. 1 (2017): 5-22. 277 Pixley, Jocelyn. ‘Wowser and Pro-Woman Politics: Temperance against Australian Patriarchy.’ Australia and New Zealand Journal of Sociology vol. 27, no. 3 (1991): 293-314. Plater, David and Sue Milne. “All that's Good and Virtuous or Abandoned and Depraved in the Extreme?' Capital Punishment and Mercy for Female Offenders in Colonial Australia, 1824 to 1865.' University of Tasmania Law Review vol. 33, no. 1 (2014): 83-140. Porter, Roy. Mind Forg’d Manacles: A History of Madness in England from the Restoration to the Regency. London: Athlone Press, 1987. ———. ‘The patient’s view: Doing medical history from below.’ Theory and Society vol. 14, no. 2 (1985): 175-98. Priestley, Susan. Henrietta Augusta Dugdale: Activist 1827-1918. Melbourne: Melbourne Books, 2011. Putnam, Lara. ‘The Transnational and the Text-Searchable: Digitised sources and the shadows they cast.’ The American Historical Review vol. 121, no. 2 (2016): 377-402. Quinlan, Michael, Margaret Gardner and Peter Akers. ‘A Failure of Voluntarism: Shop Assistants and the Struggle to Restrict Trading Hours in the Colony of Victoria, 18501885.’ Labour History no. 88 (2005): 165-182. Quinn, Cath. 'Images and Impulses: representations of puerperal insanity and infanticide in late Victorian England.' Infanticide: Historical Perspectives on Child Murder and Concealment, 1550-2000, edited by Mark Jackson, 193-215. London: Ashgate, 2002. Rae, Ruth. ‘A Historical Account of Shell Shock during the First World War and Reforms in Mental Health in Australia 1914-1939.’ International Journal of Mental Health and Nursing vol. 16 (2007): 266-273. Raeburn, Tony, Carol Liston, Jarrad Hickmott and Michelle Cleary. ‘Liverpool ‘lunatic asylum’: A forgotten chapter in the history of Australian health care.’ Collegian vol. 25, no. 3 (2018): 347-353. Rappaport, Elizabeth. ‘The Death Penalty and the Domestic Discount.’ In The Public Nature of Private Violence, edited by M. Fineman and R. Mykitiuk, 224-252. New York: Routledge, 1994. ———. ‘The Death Penalty and Gender Discrimination.’ Law and Society Review vol. 25, no. 2 (1991): 367-383. 278 ———. ‘Some Questions about Gender and the Death Penalty.’ Golden Gate University Law Review no. 20 (1990): 501-65. Reekie, Gail. ‘Writing About Rape in 1888.’ Australia 1888 no. 12 (Nov 1983): 31-39. Reid, Fiona. Broken Men: Shell Shock, Treatment and Recovery in Britain, 1914-1930. London: Continuum, 2010. Reiger, Kerreen M. The disenchantment of the home: modernizing the Australian family, 1880-1940. Oxford: Oxford University Press, 1985. Richards, Jonathan. The Secret War: A true history of Queensland’s native police. St Lucia: University of Queensland Press, 2008. Rickard, John. ‘Lovable larrikins and awful ockers.’ Journal of Australian Studies vol. 22, no. 56 (1998): 78-85. Roberts-Pederson, Elizabeth. ‘A Weak Spot in the Personality? Conceptualising ‘War Neurosis’ in British Medical Literature of the Second World War.’ Australian Journal of Politics and History vol. 58, no. 3 (2012): 408-420. Robinson, Dana. Identity, Crime and Legal Responsibility in Eighteenth Century England. London: Palgrave MacMillan, 2004. ———. 'Bodies of Evidence, States of Mind: Infanticide, emotion and sensibility in eighteenth-century England.' In Infanticide: Historical Perspectives on Child Murder and Concealment, 1550-2000, edited by Mark Jackson, 73-92. London: Ashgate, 2002. Robinson, Jan. ‘Canterbury’s Rowdy Women: Whores, Madonnas and Female Criminality.’ Women’s Studies Journal, vol. 1, no. 1 (1984): 6-25. Robinson, Daniel. ‘Wild Beasts and Idle Humours: Legal insanity and the finding of fault.’ In Philosophy, Psychology and Psychiatry, edited by A. Phillips Griffiths, 159-179. Cambridge: Cambridge University Press, 1994. Rosen, David. The Changing Fictions of Masculinity (Illinois: University of Illinois, 1993). Rotundo, Anthony E. ‘Learning about Manhood: Gender Ideals and the Middle-Class Family in Nineteenth Century America.’ In Manliness and Morality: Middle-Class Masculinity in Britain and America, edited by J. A. Mangan and James Walvin, 3561. Manchester: Manchester University Press, 1987. Rowley, C. D. The Destruction of Aboriginal Society. Melbourne: Penguin, 1972. Ryan, Lyndall. ‘Settler Massacres on the Port Phillip Frontier, 1836-1851.’ Journal of Australian Studies vol. 34, no. 3 (2010): 257-274. 279 Rychner, Georgina. ‘Murderess or Madwoman? Margaret Heffernan, infanticide and insanity in colonial Victoria.’ Lilith no. 23 (2017): 91-104. Saunders, Kay. Deadly Australian Women: Stories of the women who broke society's greatest taboo. Sydney: HarperCollins, 2013. Saunders, Kay. ‘Specimens of Superb Manhood: The Lifesaver as National Icon.’ Journal of Australian Studies vol. 22, no. 56 (1998): 96-105. ———. 'The study of domestic violence in colonial Queensland: Sources and problems.' Australian Historical Studies vol. 21, no. 82 (1984): 68-84. Scates, Bruce and Melanie Oppenheimer. The Last Battle: Soldier Settlement in Australia, 1916-1939. Melbourne: Cambridge University Press, 2016. Sena-Becker, Tara. ‘In the the Beginning: Victoria’, More Than Just a Union: A History of the Australian Medical Association. Sydney: Faircount Media, 2012. Accessed online 25 July 2020. Serle, Geoffery. The Rush to be Rich: A history of the colony of Victoria 1883-1889. Melbourne: Melbourne University Press. Schott, Robin May. ‘War, Rape, Nationality and Genocide.’ Journal of Genocide Research vol. 13, no. 1 (2011): 5-21. Shepherd, Jade. ‘I am very glad and cheered when I hear the flute’: The treatment of criminal lunatics in late Victorian Broadmoor.’ Medical History vol. 60, no. 4 (2016): 473-491. Showalter, Elaine. The Female Malady: Women, Madness and English Culture 1830-1980. London: Virago Press, 1987. Simmonds, Alecia. “Promises and Piecrusts were made to be Broke’: Breach of Promise of Marriage and the Regulation of Courtship in Early Colonial Australia.' Australian Feminist Law Journal vol. 23, no. 1 (2005): 99-120. Skalevag, Svein Atle. ‘The irresponsible criminal in Norwegian medico-legal discourse.’ International Journal of Law and Psychiatry vol. 37 no. 1 (2014): 82-90. Smaal, Yorick. 'Keeping it in the family: Prosecuting incest in colonial Queensland.' Journal of Australian Studies vol. 37, no. 3 (2013): 316-332. Smart, Carol. Women, Crime and Criminology: A Feminist Critique. London: Routledge and Kegan Paul, 1976. Smith, Roger. ‘Criminal Insanity: From a Historical Point of View.’ The Bulletin of the American Academy of Psychiatry and the Law vol. 11, no. 1 (1982): 27-34. 280 ———. Trial by Medicine: Insanity and Responsibility in Victorian Trials. Edinburgh: Edinburgh University Press, 1981. Smith, Rosalind. ‘The case of Frederick Deeming: The true crime archive as publication event.’ Southerly vol. 72, no. 2 (2012): 56-73. Stanley, Peter. Bad Characters: Sex, Crime, Mutiny, Murder and the Australian Imperial Force. London: Pier 9, 2010. Stoler, Ann Laura. Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule. Berkeley: University of California Press, 2002. Stone, Michael H. Healing the Mind: A History of Psychiatry from Antiquity to the Present. London: W. W. Norton & Co., 1997. Strange, Carolyn. 'Masculinities, Intimate Femicide and the Death Penalty in Australia, 18901920.' British Journal of Criminology vol. 43 no. 2 (2003): 310-339. Strangio, Paul and Costar, Brian, eds. The Victorian Premiers: 1856-2006. Sydney: The Federation Press, 2006. Suffrage Collective. They Are But Women: The Road to Female Suffrage in Victoria. Melbourne: University of Melbourne, 2007. Sumerling, Patricia. ‘The Darker Side of Motherhood: Abortion and Infanticide in South Australia 1870-1910.’ Journal of the Historical Society of South Australia no. 13 (1985): 111-27. Summers, Ann. Damned Whores and God’s Police. Melbourne: Penguin, 1975. Swain, Shurlee. ‘Birth and death in a new land: Attitudes to infant death in colonial Australia.’ History of the Family vol. 15, no. 1 (2010): pp 25-33. ———. ‘Maids and mothers: Domestic servants and illegitimacy in 19th-century Australia.’ The History of the Family vol. 10, no. 4 (2005): 461-471. Swain, Shurlee. ‘The Concealment of Birth in Nineteenth-Century Victoria.’ Lilith no. 5 (1988): 139-147. Swain, Shurlee and Renate Howe. Single Mothers and their Children: Disposal, Punishment and Survival in Australia. Cambridge: Cambridge University Press, 1995. Tanaka, Yuki. ‘Rape and war: the Japanese experience.’ Sajor, supra note vol. 10, no. 148 (1998): 165-166. Theriot, Nancy. ‘Diagnosing Unnatural Motherhood: Nineteenth-century Physicians and ‘Puerperal Insanity.’ American Studies vol. 30, no. 2 (1989): 69-88. 281 Thompson, John. Documents that shaped Australia: Records of a nation’s heritage. Sydney: Pier 9, 2010. Tosh, John. ‘The Old Adam and the New Man: Emerging Themes in the History of English Masculinities, 1750-1850.’ In English Masculinities 1660-1800, edited by T. Hitchcock and M. Cohen, 217-238. London: Routledge, 2014. ———. Manliness and Masculinities in Nineteenth-Century Britain. Harlow, England: Pearson Longman, 2005. ———. A Man’s Place: Masculinity and the Middle-Class Home in Victorian England. New Haven: Yale University Press, 1999. Turnbull, Paul. ‘The ‘Aboriginal’ Australian Brain in the Scientific Imagination, c. 18201880.’ Somatechnics vol. 2, no. 2 (2012): 171-197. Twomey, Christina. ‘Trauma and the reinvigoration of Anzac.’ History Australia vol. 10, no. 3 (2013): 85-108. Twomey, Christina. ‘Emaciation or emasculation: photographic images, white masculinity and captivity by the Japanese in World War Two.’ The Journal of Men’s Studies vol. 15, no. 3 (2007): 295-311. Tyler, Deborah. ‘The Case of Irene Tuckerman: Understanding Sexual Violence and Protection of Women and Girls, Victoria 1890-1925.’ History of Education Review vol. 15, no. 2 (1986): 52-67. Tyquin, Michael. Madness and the Military: Australia’s Experiences of the Great War. Loftus: Australian Military History Publications, 2006. Tyrrell, Ian. ‘International Aspects of the Woman’s Christian Temperance Movement in Australia: The influence of the American WCTU, 1882-1914.’ Journal of Religious History vol. 12, no. 3 (1983): 284-304 Tyson, Danielle. Sex, Culpability and the Defence of Provocation. London: Routledge, 2013. Ulrich, Laurel Thatcher. Well-behaved Women Seldom Make History. New York: Vintage Books, 2008. Ulrich, Laurel Thatcher. ‘Vertuous women found: New England ministerial literature, 16681735.’ American Quarterly vol. 28, no. 1 (1976): 20-40. Vaughan, Megan. Curing Their Ills: Colonial Power and African Illness. Palo Alto, CA: Stanford University Press, 1991. 282 Verhoeven, Timothy. ‘Pathologizing male desire: Satyriasis, masculinity, and modern civilization at the fin de siècle.’ Journal of the History of Sexuality vol. 24, no. 1 (2015): 25-45. Vincent, David. Literacy and Popular Culture: England 1750-1914. Cambridge: Cambridge University Press, 1989. Vronsky, Peter. Serial Female Killers: How and Why Women Become Monsters. New York: Berkley Books, 2007. Walker, David. ‘Youth on Trial: The Mt. Rennie Case.’ Labour History no. 50 (1986): 28-41. Walsh, Dermot. 'The birth and death of a diagnosis: monomania in France, Britain and in Ireland.' Irish Journal of Psychological Medicine vol. 31, no. 1 (2014): 39-45. Ward, Russell. Ward, Tony. ‘The Sad Subject of Infanticide: Law, Medicine and Child Murder, 1860-1938.’ Social and Legal Studies vol. 8, no. 2 (1999): 163-180. Waterhouse, Richard. 'Bare-Knuckle Prize Fighting, Masculinity and Nineteenth Century Australian Culture.' Journal of Australian Studies vol. 26, no. 73 (2002): 101-110. Waugh, John. 'A Sodomy Case in Colonial Melbourne: The Prison Letters of George Bateson.' Journal of Australian Colonial History vol. 20 (2018): 83-102. Weaver, Rachel. The Criminal of the Century. Melbourne: Australian Scholarly Publications, 2006. ———. ‘Reflecting the detectives: Crime fiction and the new journalism in late-nineteenth century Australia.’ Australian Literary Studies vol. 22, no. 1 (2005): 61-72. White, Richard. Inventing Australia: Images and Identity, 1688-1980. Sydney, 1983. Wiener, Martin. Reconstructing the criminal: Culture law and policy in England, 1830-1914. Cambridge University Press, 1990. Wilczynski, Ania. ‘Mad or Bad? Child Killers, Gender and the Courts.’ British Journal of Criminology vol. 37, no. 3 (1997): 419-436. Williams, Brian. Martha Needle: The Spellbinding Story of Australia’s Most Infamous Femme Fatale. Melbourne: New Holland, 2018. Williams, Brian. ‘Dr John Fishbourne: A pioneer in the evolution of special education in Victoria’ Critical Studies in Education 31, 1 (1989): 72-90. Williams, C. R. ‘Development and Change in Insanity and Related Defences.’ Melbourne University Law Review wol. 24, no. 3 (2000): 711-736. 283 Williams, John F. Quarantined Culture: Australian Reactions to Modernism 1913-1939. Cambridge: Cambridge University Press, 1995. Willis, Elizabeth. ‘Researching the Women of Little Lon.’ The Artefact vol. 26, no. 1 (2003): 3-10. Wilson, Dean. The Beat: Policing a Victorian City (Melbourne: Circa, 2006). Wiltenberg, Joy. ‘True Crime: The origins of modern sensationalism.’ American Historical Review vol. 109, no. 5 (2004): 1377-1404. Wood, Rebecca. 'Frontier Violence and the Bush Legend: The Sydney Herald's response to the Myall Creek Massacre trials and the creation of colonial identity.' History Australia vol. 6, no. 3 (2009): 67.1-67.19. Woollacott, Angela. ‘Frontier Violence and Settler Manhood.’ History Australia vol. 6, no. 1 (2009): 11.1-11.15. Wright, Clare. You Daughters of Freedom: The Australians who won the vote and inspired the world. Melbourne: Text Publishing, 2018. ———. “New Brooms They Say Sweep Clean’: Women’s political activism on the Ballarat Goldfields, 1854.’ Australian Historical Studies vol. 39, no. 3 (2008): 305-321. Wright, David. ‘Getting out of the asylum: understanding the confinement of the insane in the nineteenth century.’ Social History of Medicine vol. 10, no. 1 (1997): 137-155. Zedner, Lucia. Women, Crime and Custody in Victorian England. London: Clarendon Press, 1991, 90. ———. ‘Women, Crime and Penal Responses: A Historical Account.’ Crime and Justice vol. 14 (1991): 307-362. Zino, Bart. ‘Eligible men: men, families and masculine duty in Great War Australia.’ History Australia vol. 14, no. 2 (2017): 202-217. Unpublished dissertations Aitken, Joanne. ‘Representations of Wife Beating in Australia, 1880-1914.’ PhD dissertation, Monash University, 2005. Ballek, David. ‘Upholding the Right: An historical analysis of Victoria Police involved fatal encounters, 1835-1995.’ PhD dissertation, University of Southern California, 1998. 284 Bell, Johnny. ‘A Cultural History of Fatherhood in Australia, 1920-1980.’ PhD dissertation, Monash University, 2017. Burton, Barbara. “Bad' Mothers? Infant Killing in Victoria, 1885-1914.’ Honours thesis, University of Melbourne, 1986. Dawson, Maree. ‘National Fitness or Failure? Heredity, Vice and Racial Decline in New Zealand Psychiatry: A Case Study of the Auckland Mental Hospital, 1868-99.’ PhD dissertation, University of Waikato, 2013. Kaladelfos, Andy. ‘Crime and Outrage: Sexual villains and sexual violence in New South Wales, 1870-1930.’ PhD dissertation, University of Sydney, 2010. Lister, Alesha. ‘Masculinity and Fatherhood in Representations of Male-Perpetrated Child Homicide in London, 1889-1913.’ PhD thesis, Monash University, 2016. Lynch, J. A. ‘Legal Aid and the Legal Profession in Victoria 1841-1995.’ PhD dissertation, LaTrobe University, 1996. MacNally, M. ‘Domestic Servants and Infanticide in Victoria, 1910-1914.’ Honours thesis, La Trobe University, 1982. Parsons, T. G. ‘Some Aspects of the Development of Manufacturing in Melbourne 18701890.’ PhD thesis, Monash University, 1970. Pedly, Alison. ‘A painful case of a woman in a temporary fit of insanity’: a study of women admitted to Broadmoor Criminal Lunatic Asylum between 1863 and 1884 for the murder of their children.’ MA thesis, University of Roehampton, 2012. Punnett, Ian. ‘Toward a Theory of True Crime: Forms and Functions of Nonfiction Murder Narratives.’ PhD dissertation, Arizona State University, 2017. Rychner, Georgina. ‘The Worst Woman in Melbourne’: Women, Insanity and the Asylum in Colonial Victoria, 1890-1900.’ Honours thesis, Monash University, 2016. Smith, Terrence Gordon. “With tact, intelligence and a special acquaintance with the insane’: A history of the development of mental health care (nursing) in New South Wales, Australia, Colonisation to Federation, 1788-1901.’ PhD dissertation, University of Western Sydney, 2005. Watts, Alison. ‘Maternal Insanity in Victoria, Australia: 1920-1973.’ PhD dissertation, Southern Cross University, 2015. 285 286