 First of all, I'd like to acknowledge and celebrate the first Australians on whose traditional lands we meet and pay my respect to the elders of the Ngunnawal people past and present. I'd like to acknowledge their contribution to this place and also to this institution. So my name is Ann Evans, I'm the Associate Dean for Research in the College of Arts and Social Sciences and I'd like to welcome you to this CAS inaugural professorial lecture series. So this series is an opportunity for us as a research community to welcome and to celebrate new professorial appointments in our college. So today we are celebrating the promotion of Professor Carolyn Strange from the School of History in the Research School of Social Sciences. So this lecture today also forms a part of the ANU Gender Institute's Inspiring Women of ANU series and so before I introduce Carolyn I'd just like to ask Professor Margaret Jolly to come up and say a few words from the Agenda Institute. And very few words because I think we want to hear Carolyn in all her glory. So could I just say what a thrill it is, this is an inaugural series. There were eight women promoted to professor across the university last year and it's fantastic to be able to partner with the diverse colleges and schools that people are from. This is the third in our series to date and I'm really, really looking forward to it. For those of you who don't know what the gender institute is, who would that be in the audience? Oh a few people, right okay so this is something that's existed for seven years at the ANU. We're the kind of portal for everything that we do around research, education and outreach around gender and sexuality. We have a very inclusive and intersectional approach to gender and I'd just like to ask those of you who aren't yet signed up for our newsletter if you want to sign up and I'll pass this around. Most of you here? No Carolyn. Carolyn Strange specialises in the transdisciplinary history of gender and sexuality in modernity. So Carolyn studied in Canada and the US and she's held positions where she's taught in criminal law, in criminology and cross-cultural studies prior to joining the ANU School of History in 2010. She's published on topics ranging from the history of the Antarctic exploration to circuses to sails but she specialises in the history of crime and justice. So in 2016 she was nominated as a Fellow of the Academy of the Social Sciences in Australia. In her presentation today, Professor Strange is going to be drawing on a collaborative research project funded by the ARC on the history of sexual offences, legal responses and public perceptions in Canada and in Australia. So over to you. Thank you Margaret and Anne and thank you all for coming. It's lovely to see you all here. I think it's probably fair to say that for most people being promoted to professor is an unalloyed pleasure. In my case it may mean that I'm less likely to be mistaken for a superhero. However, it does come with compensatory upsides including the pleasure of course of addressing you here today on my research and publishing over the past 33 years. To sum it up, most of my publications as Anne has mentioned concern the history of gender and criminal justice in modern Canadian, US, Australian and British history. But fear not, I'm not going to subject you to a recitation of my CV. I'm just going to be talking about my current project. The Canadians in the room, and I think there are a few, may recognize the background image in the advertisement for this talk as a depiction of the treason trial of Louis Riel prosecuted by the Dominion government for leading the Métis people's uprising against the central state. Riel was hanged in Regina Saskatchewan on the 16th of November 1885. The only person in post-Confederation Canadian history to be executed for a crime other than murder. And this alone makes it arguably the most significant case in the nation's history. The book I'm working on currently concerns less famous capital trials, 83 cases in all in which men were sentenced to death for rape, carnal knowledge or sexually motivated murders. None of these cases resonates in public memory to the extent of Riel's with one possible exception, which I'll discuss toward the end of my talk. Instead, my object is twofold. First, to identify the confluence of factors that led to executions, commutations, and successful appeals in capital cases. And secondly, to connect the changing politics of the death penalty to those dispositions. Because Canada abolished the death penalty in 1976, I focused necessarily on the past. However, in writing this book, I remain mindful of present day responses to crimes of sexual abuse, cruelty, and lethal violence, which trigger not only revulsion and outrage, and we can think, of course, of the murder of Euridice Dixon last week. But also in many parts of the world, including Canada, calls for the reinstatement of the death penalty. To analyze the history of the death penalty in most Western countries is to study a process of decision making that was an all male affair. In the period I examined from Canada's confederation to the moratorium on the death penalty in 1967, a chain of decisions made by male law enforcement agents, prosecutors, jurors and judges, and Justice Department bureaucrats linked up to the federal cabinet, which had the constitutional power to recommend mercy or to advise that the law take its course. It won't surprise you to hear that each cabinet member over this period was a Euro-Canadian, white in either Anglo-Celtic or Francophone. The cohort of capital sex offenders was more diverse, but not much more so, and more on that in a moment. More surprising, probably to most of you, is the fact that Canadian women did not serve on juries and criminal proceedings or were granted gender-based exemptions until the 1970s. Consequently, an exclusively masculine cast of death penalty decision makers judged men's sexual violence and men's victimization of women and children in the entire period I'm talking about. I should note only one of my cases deals with the victimization of an adult male. My analysis of these 83 capital-y convicted offenders began with a profile of their characteristics. Of the 27 men convicted for rape or carnal knowledge alone, two were black and 25 white. Another black man and four indigenous men were convicted of sex murder, with only one of those convicted of murdering a white woman. The remainder of the 83 men resembled those who determined their fate, but the capital-y convicted were marginal in other respects, most significantly class. Over 93% of the men sentenced to death for sex crimes were dependent on defense counsel appointed by the court, who typically, and these men typically, had less than a week to prepare a case. In many trials, including ones conducted in the 1960s, defense counsel presented no evidence and confined themselves to cross-examination and a closing address. Occasionally, a seasoned lawyer accepted the brief to defend an accused sex criminal as a matter of professional service, but Canada lagged behind England and many US jurisdictions in providing no state-based legal aid when the death penalty was still in force. In fact, it was the proud custom of the courts to appoint a junior member of the bar to serve indigent defendants, including those accused of capital crimes. For example, the last man to be hanged in Canada for a sex murder was defended in 1961 by a lawyer who was called to the bar six months before the trial opened. Although the lawyer went on to lead the Civil Liberties Association of Canada and specialized in criminal defense, he was disbarred in 1982 for bilking a client of half a million dollars. Evidence of this nature cannot be uncovered through quantitative analysis, but it does provide the tools to trace patterns of severity over time and the means to compare the fate of capital sex offenders with other cohorts of murderers. If we look back at the first chart, you'll see that the appearance of capital sex crime cases was uneven over the century after confederation. The appearance of rape and carnal knowledge cases, the ones depicted in yellow, is confined to the first decade of confederation with one exception, this one here, which I'll turn to momentarily. Aside from one sex murder in 1873 and two in 1878, all of the murder cases occurred in the 19, sorry, from the 1880s onward. The most notable spike in these convictions, as you can see here, occurred in the 1940s and 50s. This means that as far as executive capital justice was concerned, many federal cabinets formed and dissolved without the executive considering clemency for any man convicted of sex crimes. In contrast, the liberal government, which held power from 1935 until 1957, considered the greatest number of cases. In 1953, the liberals appointed a royal commission on capital punishment following Britain's lead, and both reports of these inquiries recommended the death penalty's retention. When the Minister of Justice appeared before the commission in 1954, he testified that the executive considered the prospect of commutation equitably, well in advance of the date set for the execution of persons sentenced to death. And you can read here his statement extolling the virtues of the capital case review process. Well, abolitionists who studied the records of executions which were produced as a result of this inquiry were unconvinced by claims of this nature. And my research provides stronger evidence to question the bases on which some men died for capital sex crimes while others served commuted sentences. For instance, if we compare the execution rate of sex killers with that of men convicted of robbery murder or burglary murder, we can see that both cohorts faced a greater likelihood of execution than did men convicted for other sorts of murder, and that's the other sorts is the light gray column. With one exceptional period, this one here, male sex murderers were more likely than any others to be executed, indicating that power holding men were prepared to condemn the actions of these offenders in the harshest of terms. Yet it would be wrong to assume that studying executions is the only place to find evidence of masculine moral condemnation. To demonstrate the value of examining commutations in concert with executions, I turn now to two capital sex cases in which the politics of race, gender, and class transsectored national politics in the course of death penalty decision making. In the case of William Maccathern, convicted of rape in 1927, a court of appeal, not the executive, made the final decision. Nevertheless, his death sentence, the first in 50 years for the crime of rape, set the standard process of capital case review into motion. When the so-called Fathers of Confederation decided in 1869 that rape and carnal knowledge, meaning the sexual abuse of a girl under the age of 10, would be mandatory death penalty offenses. They diverged from Britain, which modified that penalty in 1841. The reason for this, according to Prime Minister and Minister of Justice, Sir John A. Macdonald, was the alleged propensity of black men toward sexual violence. As he declared in 1868, Negroes were very prone to make felonious assaults on white women. However, no cases of this nature came before the cabinet and Macdonald himself, in his capacity as the head of cabinet, authorized commutations for every man sentenced to death for rape or carnal knowledge during his time of office. By 1877, concerns over the non-enforcement of the death penalty, as well as the power it potentially gave women and girls to testify against men, Parliament revised the law to make carnal knowledge a non-capital offense and to make the death penalty an optional death penalty offense for up to the judge's discretion for rape. No Canadian judge exercised that option until the 15th of February, 1927, when William Maccathern, a 39-year-old black man, was convicted and sentenced to death for the rape of Alice McCall, an 81-year-old white woman for whom he had performed odd jobs. On the night of the 26th of October, 1926, he broke into the McCall's house while Mr. McCall was away in hospital. Maccathern ransacked the premises for money and sexually attacked and beat the elderly woman, who managed to escape and to alert a neighbor. When men from the local white community in the southwestern Ontario town heard the news, they converged on the McCall house to find Maccathern asleep in the basement. We have no record of the discussion that took place as they seized the man, but trial testimony revealed that some of the captors, including one of the victim's sons, contemplated stringing him up. Because cooler heads prevailed, Maccathern was put on trial before a justice of the Assize Court. And the night before the trial opened, a local lawyer agreed to take the case. No witnesses were called for the defense, which consisted of nothing more than a few questions in cross-examination to suggest that the assault might have been an attempted rape, which would have been a non-capital offense. From start to finish, including the nine minutes it took for the all-white, all-male jury to find him guilty, Maccathern's trial and sentence to death lasted two and a half hours. Much of that time was taken up by gratuitous statements by the judge, who commended the victim's white neighbors for showing restraint that allowed Canadians to distinguish themselves from lawless Americans who responded to such crimes by lynching suspects. Through this praise, however, he simultaneously demonized Maccathern, stating that law-abiding Canadians, that is, white people, had resisted the urge to, quote, burn a fiend at the stake. After the conviction, the trial transcript and the judge's report arrived in Ottawa, where officials in the Department of Justice produced case files for the cabinet's review. However, Maccathern's case material created a conundrum for the clerks in the remissions branch of the department who tried to anticipate questions from the cabinet as this memo indicates. Had any man been sentenced to death for rape since Confederation? If so, when? Had any been executed? No one knew the answers to these questions. So law clerks had to reach deep into their filing cabinets for the answers, since the judge had set the date for Maccathern's hanging two months after his conviction. Fortunately for Maccathern, his extraordinary sentence attracted a more experienced lawyer to the case and he filed an appeal in the Ontario Court of Appeal. So in legal terms, the defense had won Trump card. The death sentence could be appealed because it was not a mandatory penalty for rape as had been determined in the 1870s and as it was for murder. The court accepted the argument that the sentence was out of keeping with prevailing practice. Accordingly, it reduced Maccathern's sentence from death to imprisonment for 20 years plus 20 lashes, which was a common penalty in the 1920s in Canada. But the basis for this moderation drew on racist reasoning. Maccathern's Anglo-Celtic defense lawyer referred to his client as a negro of low mentality who was addicted to alcohol. The chief justice went further in this regard and in his judgment, he described Maccathern as by nature crude and ethically defective and a man whose underlying criminalistic tendencies and brutality had emerged in aggravated form. As the outcome of this case indicates, patriarchal white nationalism could sit comfortably alongside penal amelioration. If we fast forward 32 years, we come to another anomalous case in which a capital sex crime became entangled in the politics of the death penalty and national politics, although in ways distinct from Maccathern's sentencing. And this is the case that I foreshadowed in the opening when I referred to the capital conviction that rivals the trial of Louis Riel in Canadian memory of the death penalty. This crime, the rape murder of a 12-year-old girl, Lynn Harper, occurred in 1959 just outside an air force base in Southwestern Ontario. The police arrested and charged a boy of 14, Stephen Truscott, because he was the last person known to see Lynn while she was still alive. By this period, a person so young would normally have been tried in the juvenile court, but the seriousness of the offense prompted the local magistrate to assign the case to an adult court. After his two-week trial for murder in the fall of 1959, Truscott was convicted, although the jury and the judge both recommended clemency. Well, no Canadian seriously anticipated that the government would allow a boy of 14 to be hanged for murder for two reasons. First, journalists dug into the records and reported that no youth in Canada had even been sentenced to hang since 1875. Nevertheless, the case dramatized that in Canada there was no legal provision to prevent the execution of a juvenile. In England in contrast, the execution of offenders under the age of 18 had been ruled out in 1933, but Canada still left that decision up to the cabinet. The other reason why the public anticipated the commutation of the death sentence was the government's controversial move away from capital punishment enforcement, which began in the late 1950s. Two years before Truscott's trial, John Diefenbaker, the first conservative prime minister in 22 years, came to office with a background as a criminal lawyer and a specialist in criminal defense. He had also defended several capital offenders, one of whom had been executed and whom he believed to be innocent. The day after Truscott was sentenced to death on the 1st of October, 1959, the prime minister as head of cabinet announced the government's intention to commute the sentence once the court of appeal had considered his case. As Diefenbaker explained, his cabinet had adopted a policy of granting clemency if juries had recommended mercy. However, he also decided to wait until the court of appeal had made its judgment before he acted. For some Canadians, Diefenbaker's stated attention to alter the mandatory sentence of death via the executive rather than amending the criminal code was undemocratic. For others, including English observers, as we can see here, his decision to suspend the exercise of the royal prerogative waiting for the courts to act failed to make proper use of executive power. In the interim, Diefenbaker's government faced mounting disapproval as this editorial in the Manchester Guardian indicates. For four months, Truscott faced execution, spending his 15th birthday on death row before the court dismissed the appeal, prompting the executive to act the very next day, to make good on its promise, and to commute the sentence to life. But controversy continued. As allegations soon emerged that a serious miscarriage of justice had occurred in the crowns and the judges' handling of the case. Evidently, outrage over the rape and murder had produced a rush to justice and an innocent boy had paid the price. No further developments occurred, however, and the principle of finality held for six years since the Supreme Court of Canada had denied leave to appeal in 1960. But the course of the case changed in 1966, thanks to a journalist who cataloged a host of procedural irregularities and prejudices that had colored Truscott's trial. In 1966, the publication of Isabel de Brugde's innocuously titled book, The Trial of Stephen Truscott, did not lead to his release from prison, but it did become a catalyst that turned a sufficient number of MPs in favor of abolishing the death penalty. Parliament's first step was to amend the criminal code in 1967 by imposing a five-year moratorium on the death penalty. It made exceptions for people who killed police officers or prison guards, but no exceptions were made for sex killers. They were not singled out. Two years after the moratorium, Truscott was released from prison and placed on parole, while the campaign to overturn his conviction continued. Finally, in the face of new evidence, the Ontario Court of Appeal quashed his conviction in 2007. And a year after that, the Government of Ontario acknowledged Truscott's case as a miscarriage of justice and awarded him $6.5 million in compensation. Today in Canada, the name Stephen Truscott has become synonymous with wrongful conviction. As this slide shows, successful appeals in capital cases were a rarity. In Canada, access to appeals was meager until the 1960s, and most capital-y convicted offenders had no access to lawyers skilled enough to argue before the judicial elite. However, I have found a handful of cases in which leading members of the bar sacrificed their time and lent their expertise to represent convicted sex murderers in courts of appeal on points of law. And this is just something to note that until 1961, it was not, offenders did not have the right to appeal on matters of fact before the Supreme Court until 1961. So by far the most common legal matter raised in successful appeals was the improper use of coercion or inducements made by the police in order to extract confessions. And through their interventions, seven men, including Maccathern, were spared execution after courts of appeal, either set aside verdicts and ordered new trials in which defendants were acquitted or convicted on lesser charges or quashed convictions. But as this chart shows with the gray and yellow, these were exceptions. For the vast majority of Canada's convicted sex criminals and killers, the changing roster of men who served in the federal cabinet were the decision makers who determined their fate. And as I've shown, the inclination toward clemency did not increase over time until the period we can see in the 1960s where we're moving to effectively a de facto abolition period. Well, you might by this point be wondering whether by focusing as I have done on the history of the death penalty and its administration that I disregard the suffering and horrible deaths of the victims in these cases, but nothing could be further from the truth. Indeed, I hesitated to take on this book project because I knew that I would have to be confronting gut-wrenching testimony and images. As I sat in the archives in Ottawa, flipping through papers and photographs in these 83 capital files, it was difficult not to be struck by a sense of horror and disgust at the suffering inflicted on victims. But I was also struck by the lofty claims of judges, ministers of justice, remissions branch officers and the members of the Royal Commission who extolled the virtues of Canadian criminal justice in death penalty cases. Their claims and their actions and their dilemmas have inspired my critical perspective on the death penalty's administration. And the contents of these files confirms that in many of these cases, especially the 27 dealing with child victims, near lynchings occurred, including several cases with white suspects, not just McCathen. Judges and juries frequently accepted questionable confessions and regarded police evidence uncritically. And the police under intense pressure to produce a suspect were clearly prone to tunnel vision with Truscott's case, just one example. Psychiatric expertise was beyond the means of most defendants and the legal definition of insanity created a narrow window for the presentation of evidence concerning mental abnormalities. And most of all, men on trial for their lives had no choice but to accept the defense the court appointed. These were the ingredients most commonly found in the cocktail of convictions and executions, but their potency depended significantly on the period in which their cases came before cabinet. Although Truscott is the only one of these men officially recognized as wrongfully convicted, my research shows that the majority of men sentenced to death faced execution on questionable evidence and the thinnest of defenses. When the criminal justice system works so poorly for defendants, it also fails victims because it undermines the credibility of convictions. As one legal commentator stated in relation to the murder of Lynn Harper, law enforcement dishonored this girl, her family and her community, none of whom benefited from the arrest, prosecution and conviction of an innocent young man while the real perpetrator of this horrible crime escaped justice. It's natural for us to be certain that we're living in times where more sophisticated forms of forensic analysis, state-funded legal aid and the provision of appeal on matters of fact as well as law rule out the possibility of errors in our own time. And in Canada, the Charter of Rights and Freedoms provides further assurance of fairness in criminal justice in comparison with the period before that when the death penalty was still in force. Perhaps too, we might imagine that juries are more fair-minded and better representative of the broad community, especially now that women serve alongside men. Yet we also know that funding for legal aid is shrinking, that women know less than men harbor racist beliefs and that science has yet to provide definitive answers concerning the culpability of persons affected by alcohol, drugs, trauma or mental illness. So for this reason, I consider this book about the past a cautionary tale for our own era as well as for the future. And just on a final personal note, as I was preparing this talk, it occurred to me that it's the first time I've done a presentation where I won't have the opportunity to talk to my father about this. I recognize him as a man with a year nine education who developed expertise in art, botany, architecture, music, biology and history. And so I dedicate this talk to his memory. Thank you.