Masculinities, Intimate Femicide and The Death Penalty in Australia, 1890-1920

Abstract

Studies of intimatefemicide typically frame men as problems—the men who are violent towardfemale intimates, and those who fail to treat their violence seriously. Such an analytical approach evokes the question: why do men sometimes punish other men, particularly in periods when men alone served as jurors, judges, and legislators ? Based on a study of 64 capital convictions in New South Wales, Australia, between 1890 and 1920, this paper examines how the prosecution and punishment of femicide delineated hierarchies of masculinity, between the power-holding males, who evaluated criminal acts, and the men they convicted: cuckolds, spurned suitors, brutes and menaces to society. Thus it provides a fully gendered account of intimate femicide, one that takes selective masculine punitiveness as seriously as it analyses masculine mercifulness. Thanks to a generation of feminist scholarship and activism, the inadequacy of the criminal justice system to protect women from lethal domestic violence has become undeniable (Dobash and Dobash 1992; Hilton 1993). When radical feminists called this crime 'intimate femicide' they diverted attention away from the spectre of 'stranger danger' and raised public awareness of the hidden nature of private violence. From a variety of disciplinary and political perspectives scholars have confirmed that this form of homicide tends to be punished less often and less severely than other forms of lethal violence, even when attacks are characterized by premeditation and viciousness (Stout 1993; Radford and Russell 1992). Feminist psychologists report predictable emotional patterns of despondency, jealousy and possessiveness in men who kill 'their' women, and criminologists have shown that courts tend to consider those same characteristics as mitigating rather than aggravating factors (Radford and Stanko 1994; Walker 1999; Felson and Messner 2000). Elizabeth Rappaport has labelled prosecutors', jurors' and judges' inclination to spare femicidal killers from the criminal law's stiffest penalties as the 'domestic discount'. As she documented in her studies of recent US death penalty cases, men convicted for killing wives or girlfriends are significantly less likely to receive the death penalty than are male murderers of strangers or acquaintances (Rappaport 1994:227). A 'domestic discount' also operated in turn-of-the-century Australia, where execution rates for men convicted of femicide and attempted femicide (both offences capital crimes in the period) were significantly lower than they were for men convicted of other capital offences. From the vantage point of contemporary feminist critiques of sexist justice these findings seem unsurprising. After all, men alone served on juries, qualified as lawyers, presided as judges, and sat in the state and federal legislatures in the period. Yet men did punish other men for acts of femicidal violence. Male legal actors in this overtly masculinist criminal justice context periodically condemned defendants who