Victorian America treated women offenders in accordance with its inflexible ideals of femininity and its scholarly theories on female crime. The male dominated criminal court system found difficulty applying the rigors of justice to women whom cultural norms had determined to be “pure, passive and dependent,” and whom, leading experts claimed, seldom committed crimes. California was no exception. Drawing from over 1,200 murder, assault and robbery allegations, this essay will, in the context of prevailing social attitudes, examine cases alleging female violence and compare womens’ judicial treatment to that of minorities and men.
TURN OF THE CENTURY ACADEMIC VIEWS OF FEMALE CRIMINALITY
Historically, female offenders have comprised a small fraction of the criminal statistics in both Europe and America. Friedman and Percival’s study of Alameda County, California, between 1870 and 1910 revealed only 4-6% women defendants for all cases that reached superior court. A similar search in Placer County uncovered three women out of one hundred defendants.1 For violent offenses, women encompassed a similarly small portion. In 1909, the female arrest rate for felony assaults in Toledo, Ohio was 5.4 percent.2 A Toronto study revealed a range of 7 to 15 percent for women arrested between 1880 and 1910.3 Some turn of the century criminologists questioned the validity of gender differences in crime statistics and suspected that some “female” offenses tended to go unreported for various reasons.4 They noted that abortions were usually a private affair shielded from authorities by one or both parents. Many thefts by prostitutes went unreported because of the unwillingness of clients to cooperate with police. Lesbians were rarely arrested in contrast to male homosexuals.5 However, murders, assaults, and robberies generally did not fit this pattern. The open and obvious nature of violence attracted witnesses and resulted in fairly accurate reporting.6
Those criminologists who accepted the disparities explained them with theories centering around social factors, inherent gender differences or a combination of the two. Scholars who favored social factors pointed to the submissive role society had allotted women. Domestic occupations, fewer temptations and lack of opportunity all kept women away from crime. Other writers proposed that continuous urbanization and growing female independence were altering traditional patterns of behavior. Some suggested that womens’ crime rates would eventually approach those of men as social and economic disparities between the sexes diminished. In 1894, Cornelis Loosjes argued this case by showing how female crime rates differed from Eastern to Western Europe. Crime rates were lowest in the east, where women played a more traditional role. Female participation gradually rose from central to western Europe as women approached a more equal status to men.7
Other theorists singled out inherent gender differences rather than social influences. In 1892, Louis Proal proposed that women were morally superior to men. Supporting this was the observation of other theorists, that in almost all cultures and societies, women were rarely criminal. According to Luke Owen Pike, a woman’s inferior strength deterred her in prehistoric times from growing as criminal as men. The social patterns thus formed lasted into the modern era.8
The most investigated “difference” between the sexes was biological. In 1895, Caesar Lombroso and William Ferrero compiled The Female Offender, a major work enhancing the new science of “criminal anthropology.” In keeping with the academic establishment’s fascination with Darwinism and physical anthropology, Lombroso looked for pathological and atavistic causes to criminal behavior. By medically examining prisoners and, in particular, analyzing their crania, organs, moles and other anatomical features for abnormalities, he hoped to document the relationship between these physical anomalies and criminal behavior.
Lombroso found far fewer “atavistic deviations” among female prisoners than among the male, which led him to assume that women were occasional offenders and that men were more often habitual criminals. This finding explained the universally low female crime rates.9 He generalized his theory by noting that females of lower animals also possessed fewer of these irregularities than the males and as a result, the females better represented the form of a species. Lombroso believed that this natural conservatism resulted from the immobility of the female ovule compared to the male sperm. Another factor behind the fewer deviations was the male reluctance to mate with an “irregular” female. Among humans, nature occasionally overcame these obstacles and produced a female full of anomalies or a “born criminal.” To have countered natural tendencies, Lombroso reasoned that the inherent abnormality of this female must have been great which would cause her to become a monster far more evil than the male born criminal.10
Contemporary and future scholars for the most part relegated Lombroso’s theories to Victorian times. Some attacked his ideas for not giving proper attention to the social or environmental causes of crime. Others regarded his definition of “anomalies” as too subjective and thought his methodology resembled a beauty contest. Many agreed with his methodology, but noted that the same anomalies also characterized alcoholics, epileptics, lunatics, and habitual paupers and thus, his theory failed to distinguish a “criminal type.”11 Remnants of Lombrosian theory remain as some researchers continue to emphasize biological differences between males and females to explain female criminality.12 Some unsubstantiated, but persistently popular, ideas attributed to Lombroso include womens’ alleged amorality, natural passivity, and superior adaptability to surroundings.
Some nineteenth century scholars suggested that irritation associated with monthly menstrual cycles increased female crimes against person and property. Several writers cited statistical evidence correlating menstruation with arrests for shoplifting, resisting public officials and for various other offenses.13 Viewing menstruation as a periodic biological disability, during which women allegedly could not control themselves, one author urged lenient criminal treatment.
The menstruating woman has a claim to special consideration by the judge because she is at this period “unwell” and more or less psychologically disturbed. Abnormal irritability, attacks of melancholia, feelings of anxiety are common phenomena. Inability to get along with the husband and domestics, ill treatment of otherwise tenderly cared for children, emotional explosions, libelous acts, breach of peace, resisting authority, scenes of jealousy, craving of alcoholic beverages because of physical pains, neurotic and anxiety conditions are everyday experiences with innumerable individuals.15
In 1924, Freud suggested that menstruation reminded women of their inferiority and inflamed them toward revenge.16
AN OVERVIEW OF NINETEENTH CENTURY FEMALE ASSAILANTS AND MURDERERS
According to the 1890 census, female prisoners residing in the United States were less often convicted of murder, assault or robbery than male prisoners. Women convicted of these crimes comprised twelve percent of the female prison population compared to twenty-three percent for men. In California, a look at the San Quentin Prison Register (Figure 1) also indicated fewer women sentenced for violent crimes.17 From 1880 through 1910, 231 women (1.4%) entered San Quentin out of approximately 16,630 prisoners. Murders, assaults, and robberies represented twenty percent (forty-six inmates) of the convictions, which was less than that for male prisoners.18
The 1890 Census showed that the relative number of women imprisoned for violent crimes varied among the states (Figure 2). The figure was lowest in California, Massachusetts and New York, states which also had a greater number of female “public morals” and “public peace” offenses. Numerically, most women imprisoned for violent crimes resided in the southern states.19 The vast majority, African-Americans, were most likely victims of southern state judicial systems determined to keep Black people “in their place.”20
MURDER AND ASSAULT DATA
The data was gathered from superior court case files, coroner reports, prison records, and local newspapers. These sources contained useful statistical information about the crimes, the resulting court cases and the parties involved.21 Felony crimes selected in the three county area consisted of first and second degree murders, manslaughter, assault with intent to murder, assault with a deadly weapon, and robbery.22
Population demographics greatly affected the crime data. Due to the recent Euro-American settlement of the three counties, the population sex ratio was uneven. In 1850, men outnumbered women twelve to one, in 1880, three to two, but by 1910 the ratio had evened up to 1.23 to one. Tuolumne County, which maintained the highest male to female ratio, recorded no murderesses or female assailants whereas San Diego County, which had the lowest, registered the vast majority of them.23
Between 1850 and 1900 a total of 645 murders occurred, which involved thirty-seven female victims and five murderesses. District Attorneys prosecuted 269 of the alleged murderers including two women and fourteen accused of killing women. From 1880 to 1910 superior courts processed 604 assault and robbery defendants including seventeen women and twenty-nine accused assailants of women. In both studies men allegedly attacked women far more often than vice versa. As a group, women retained a higher victim to attacker ratio than any of the ethnic minorities surveyed in a previous study.24
Examination of the murder data turned up the following allegations in the three county area between 1850 and 1900.
SAN DIEGO COUNTY
1870 An Indian woman shot a Mexican man to death at a ranch.
1870 An Indian woman fatally stabbed an Indian laborer in a
quarrel on the reservation.
1893 Anglo wife shot her husband to death in a domestic dispute.
SAN LUIS OBISPO COUNTY
1874 A Mexican mother poisoned her three children at their home.
1883 An Anglo housewife strangled her infant daughter.
The story here is not what appeared, but what is missing. Overall, only eight (1.2%) women (one was counted three times for a triple murder) out of 645 homicides were implicated during the entire fifty year period and only one woman was convicted compared to 131 males. The database included gold rush homicides, most of which occurred in Tuolumne County. Although pre-1880 murders there accounted for forty-four percent of the total homicides, not one woman appeared in this large cluster.25 The low female to male population ratios that characterized California’s frontier development, particularly during the gold rush, best explain the lack of murders committed by women in Tuolumne.
The homicide conviction ratio of females to males (0.8%) was low in the three counties compared to broader studies in other locales. In 1890 women comprised 5.6% of all murderers imprisoned in the United States.26 A survey of homicides in Austria in 1899 showed 30.3 women for each 100 convictions and another one in Germany in 1896 registered 22 women for each 100 men convicted respectively.27
Historically, women murderers have used poison. According to Otto Pollack, murderesses have, for “a large span of time” and in many countries, used poison more often than any other weapon.28 Citing his own observations of one hundred female murderers from a 1908 study, he stated “poison was used 35 times while no other method was used more than 16 times.” Pollack further noted statistics in France and the United States that suggested 6-7 poisoners out of ten were women, and accordingly, argued that women used poison more often than men. Murderesses favored this weapon because poisons, particularly arsenic, could be easily purchased and given to victims. Some poisons produced symptoms similar to well-known diseases and, thus, escaped detection.29 Nineteenth century coroners usually held inquests only in deaths that showed strong evidence of violence.30
The study uncovered only one female poisoner. In 1874, a San Luis Obispo woman, depressed over an unfaithful lover, murdered her three children using strychnine and then attempted to poison herself. The San Luis Obispo Tribune, which covered the case, lamented the lack of laws restricting the sale of poisons.
In the face of the tragedy above recorded, we would like to know if no law exists prohibiting the indiscriminate sale of poisons of all kinds by inefficient parties. We believe it is the almost universal custom throughout this State for all general storekeepers to keep on hand — poison for sale. In other and older States no poison can be sold or dispensed except by apothecaries, and even by them only under proper medical or other proper authority. It is a deadly wrong to the community that such a law does not exist, or at all events, is not enforced in this State.31
Recognizing the possibility of poisoners at large, California, in 1907, established controls over the distribution of poisons. The new law was intended to block access to poisons by potential abusers and to prevent accidental sales to unwary customers. Provisions required the seller to record information such as the date of purchase, the name and address of the buyer, and the purpose of use.32
This study uncovered only five infanticides,33 another homicide associated with women. Alleged perpetrators consisted of two women, two men, and one unknown killer. The crime was fairly common in mature urban areas such as Victoria, Paris, and Toronto but not often prosecuted.34 Concerning Toronto, a writer noted, “during the 1860’s, for instance, there were only seven cases where a woman was ever charged with the offense; but the number of dead infants found and examined by the coroner was between fifty and sixty.”35 The lack of reported bodies may imply that the crime was not as common in San Diego, San Luis Obispo, and Tuolumne counties.
Constance Backhouse maintains that “in nineteenth century Canada infanticide was viewed as a rather common feature of everyday life.” Despite Canadian laws prohibiting infanticide, the majority of courts encountered difficulty convicting offenders. Most offenders were “poor, lower class, and unmarried women, who had been seduced by the father of their children.” Out of compassion for desperate women who lacked the financial means to raise children and the fact that these women were no threat to the status quo of male dominance, courts were very lenient.36
Reliable statistics were difficult to obtain because, in most localities, infanticides escaped official detection. Many women concealed their pregnancies, gave birth alone, killed the infant and disposed of the body, all without being discovered.37 Authorities uncovered some incidents, but medical science often lacked resources to determine whether the child died during birth or was killed shortly afterwards.38
In the three counties no explanations for the low number of murderesses seem apparent other than the low female to male population ratios and the possible failure to report poisonings and infanticides. The reluctance of authorities to prosecute women may have left cases unsolved or shifted the accusations to male accessories and innocent men, but little evidence exists to support such a possibility.
ASSAULTS AND ROBBERIES
The assault and robbery database revealed seventeen women (2.8%) out of 604 superior court defendants. The criminal proceedings occurred in fifteen cases (two with double defendants). All incidents, except one, transpired in San Diego County.
1881 Outside of a tavern a twenty year old Indian woman stabbed a man causing serious injury.
1882 Nineteen year old Indian woman stabbed another Indian woman causing serious injury.
1885 Indian woman stabbed man seriously wounding him in the leg for non-payment of a debt.
1887 Mexican woman hit a male Anglo with a water pitcher inflicting minor injury. (San Luis Obispo County)
1889 Anglo woman assaulted a male acquaintance with unknown weapon.
1890 Anglo woman shot at a saloon owner.
1893 A mulatto and an Anglo woman acted as accomplices in torturing a boarder for his illicit relations with a niece. The man was seriously injured.
1899 Anglo woman hit her sister with an iron bar resulting in moderate injury.
1900 Nineteen-year old Mexican prostitute robbed newspaper boy.
1900 Anglo woman seriously injured a bystander while shooting at her husband in a saloon.
1901 Anglo woman shot at her former husband in a dispute over child custody. A bullet cut one of his fingers.
1901 Two Anglo women kicked and beat a woman with rocks causing serious injury. The dispute involved a love triangle.
1903 African American woman shot at her husband in a domestic dispute.
1910 African American woman stabbed a roomer at the defendant’s residence causing serious injury.
1910 African American female accomplice robbed a man of thirty five dollars.
A number of female assault allegations, some involving serious injury and much publicity, never reached Superior Court. A newspaper search revealed an additional fifteen incidents in San Diego alone. In the most publicized cases the defendants seemed either wronged, repentant or blessed with an alibi and none of these women received convictions. Justice courts and out of court negotiations resolved most of the disputes.
In both the superior court cases and the newspapers, domestic disputes lay behind more attacks than any other cause. Conflicts directly or indirectly involving lovers appeared next most frequently. Alcohol, unpaid debts, longstanding grudges, wives joining husbands in disputes, women defending family property against thieves, and resistance to arrest caused the remaining altercations.
Several attacks were the outgrowth of unstable marriages. Social upheaval resulting from the industrial revolution redefined marital relationships, caused serious economic stress for many couples and contributed to the doubling of the nationwide divorce rate between 1880 and 1910.39 California, with its flexible divorce laws, possessed the highest rate in the nation. According to Robert Griswold’s study of 401 divorce suits in San Mateo and Santa Clara counties, disputes cut across all social classes, rich, poor, literate and illiterate. Griswold suggested that the rise in divorce rates and the high portion (two-thirds) initiated by women indicated that women were rising in status and beginning to assert themselves.40 Susan Gonda’s study of divorce suits brought between 1850 and 1880 in San Diego County also found approximately two-thirds of the cases initiated by women. Cruelty (usually physical abuse) appeared as the cause of twenty percent of the men seeking divorces and forty-one percent of the women.41
Female robbers were uncommon. The 1890 census showed that females made up only 1.3% of all people imprisoned for robbery in the United States.42 In eighteenth century England, J. M. Beattie noted, “Few women were ever reported for muggings in the streets of London and women highway robbers were even more rare.” The author further stated, “When women actually did engage in robberies they were usually associated with male robbers, sometimes…taking a direct part in the crimes but more often acting as decoys and lookouts.”43 This study turned up two allegations (1.6% of all database robberies) in superior court and two others in the press. In the San Diego Stingaree District, robberies by prostitutes who “rolled” customers usually went unreported because of the clients’ fear of association. Only one alleged victim, a twelve-year old orphaned newspaper boy, brought his case before superior court. He freely entered the woman’s residence and, depending upon whose testimony is believed, was either unhappy with services rendered or was outright robbed of the standard payment of one dollar. The judge dismissed the case twelve days after the information was filed.44 In two of the three remaining cases the accused acted as accessories.45
Although women apparently shunned the “force and fear” required to legally commit a robbery, some were not averse to more subtle theft. The San Quentin Prison Register from 1880-1910 (Figure 1) showed that the women imprisoned at the facility committed grand larceny (forty-seven percent) far more often than any other crime.46
Female assault and robbery defendants seemed to possess fewer financial resources than male Anglos or male ethnics. Most women used inexpensive weapons such as knives or blunt instruments (Figure 3), and interestingly, none used poisons. They also were given extremely low bails despite evidence that was often incriminating. Judges usually set the amount according to the defendant’s ability to pay, the severity of the allegation and the credibility of the evidence.
Minorities constituted most of the female defendants in both the assaults that reached superior court (Figure 4) and those reported in the newspaper. As a result women defendants paralleled minority groups in the types of weapons used, preference for jury trials, and shorter prosecution times.47 However, the court system dealt women much more lenient treatment than any ethnic group.48 The high minority representation also appeared at the state level. Between 1880 and 1910 the San Quentin Prison Register listed six (55%) minority women from the total of eleven female inmates convicted of assault.49
The outcomes of the fifteen superior court cases (Figure 5) and the resulting judgments would discourage most district attorneys. Only six women (35%) were convicted, and one half of these convictions were reduced to simple assault. Three received prison sentences, the maximum of two years for assault with a deadly weapon (ADW), and one received a county jail term. Four women (24%) suffered incarceration compared to a 42% average for all ADW defendants.50 Juries were apparently hesitant to convict women of violent crimes and, perhaps realizing this, the vast majority of defendants (91%) opted for jury trials.
Indian women apparently bore the brunt of guilty convictions and prison sentences. Courts freed one but convicted two others with no charge reductions and sentenced them to prison.51 Of the remaining four convictions (all non-Indians) three were reduced to simple assault.
The southern California real estate boom and the tripling of the coastal population between 1880-189052 pressured tribal land claims and demoralized native populations.53 Indian land loss, detribalization, and poverty contributed to an apparently high female crime rate. During this time Indian women comprised approximately one half of all assault defendants in the superior courts and in the newspapers.54
Indian women suffered from the negative media and scientific preconceptions that plagued all Native Americans. Accusations of savagery, such as the following, suggested the “inherent” depravity of Native American women and may have impaired their treatment in the criminal justice system. Concerning an incident unrelated to Indians, a San Diego Union editorial vented moral outrage at two women who allegedly tortured a man.
How much more then is the astonishment to learn that women — women of presumed intelligence and refinement — could be found to commit so gross a crime! It is enough to condemn to lasting shame those who participated in it. Among the Indians the squaws were always noted for the devilish tortures inflicted upon those captured by their husbands, but among civilized people woman has come to be regarded as possessing all the traits of gentleness and mercy.55
When the defense presented evidence that the victim had forcibly raped a family member, public furor subsided and the judge eventually dismissed the two womens’ cases.56 However, the unfortunate slander would probably remain in the public mind to prejudice judges, juries, and prosecutors against future Indian defendants.57
Despite problems encountered by Native Americans, courts in the study area seemed to treat women defendants with considerable tolerance. Behind the light treatment lay the entrenchment of Victorian female stereotypes among male jurors, judges, lawyers, and victims. Court records linked to allegedly violent females offer a unique view of these preconceptions as they existed between 1880 and 1910.
WOMEN’S ROLES AS SEEN FROM ASSAULT DOCUMENTS
Popular expectations, opinions and theories about women were rooted in eighteenth century America. The mostly agrarian economy consisted of individual family farms that dictated a fairly uniform, well-defined role for women. Colonial wives managed a farm based household economy that was often self-sufficient. They raised small stock, performed the dairying chores, made their own cloth by spinning, combing and carding fibers, knitted the cloth into garments, raised vegetable gardens, pickled, preserved and marketed the produce, and made candles and soap. As mistress of the economic unit, the wife delegated chores to children and servants, overseeing the maintenance of the property and the production of basic necessities. Primitive living conditions, constant activity, and continuous childbearing took their toll and certainly contributed to an estimated life expectancy of forty years.58
The second half of the nineteenth century, however, brought into full force the industrial revolution and, for many people, a realignment of economic priorities. With the new order emerged a prosperous middle class in which wealth came from the business success of the husband instead of the wife’s ability to manage a farm. Middle class women, left with a vaguely defined role, eventually developed or inherited a “cult of femininity,” which centered around child-bearing and strict observance of moral values of purity, piety and chastity.
The sheltered, passive and leisurely life of some middle and upper class women was envied but not generally shared by working class, rural and minority segments of the population. Necessity forced many women to work for wages outside the home. Between 1880 and 1910 the female portion of the national labor force rose from 14.7 to 24.8 percent.59 Local court documents reveal the economic dependency some women felt toward their men. In the heat of a dispute over right-of-way in rural San Diego a man pointed a shotgun at a German immigrant. The victim’s wife promptly stepped in front of the assailant’s gun to shield her husband. During preliminary testimony she stated in broken English, “I rather have him shoot me, what can I do if he kill him or make him like a cripple, I rather have him shoot me anytime.”60 Another San Diego woman, whose husband had just been sentenced to six months’ imprisonment for beating her, “pleaded tearfully for the fellow’s liberty, informing the recorder that if ‘Tommy’ was locked up she and her little ones would be deprived of their support.”61
Before 1910 the women of California, like people in other states, lived under state laws that favored male dominance. Many towns enacted laws prohibiting women from wearing men’s clothing even though shirts and trousers were more comfortable and practical for a number of occupations, including farm work.62 In a typical marriage, fathers assumed sole guardianship of all children, including their care, education, custody and services. Community property of a marriage was also controlled by the husband. He could not sell it without the wife’s consent but he could will one-half of it away. If the wife died first she had no rights to convey her share of the property. Although women paid taxes they could not vote in California until 1911. Women accused of law violations were “arrested by men, imprisoned with men…tried in a court by men lawyers, jurors, and judges according to man-made laws.”63
With subordinate legal status came limited protection. During the nineteenth century, California, like other states, endorsed the doctrine of coverture to protect married women from criminal liability. This concept originated in medieval England. The community held a husband responsible for his wife’s behavior and, accordingly, laws gave a man the right to beat his wife ensuring her obedience to him and to the prevailing social norms. In general terms, the doctrine can be stated as follows: “A married woman is not responsible for crimes committed by her in her husband’s presence or in concert with him, and such a situation raises the presumption of coercion by her husband.”64 California’s version, first enacted in 1872, provided protection for all crimes other than those punishable by death. The teeth were removed from the statute a year later when an amendment extended the exception to include all felony crimes.65
Perhaps because of laws and stereotypes that implied submissiveness, some female assailants in the three counties seemed to lack the ability to convince their victims or the press that they were dangerous. In three cases the defendant, with weapon in hand, threatened her victim with immediate attack. The disbelieving victims failed to respond appropriately and suffered the consequences. One received a bullet in the chest and later told the press, “when she threatened to kill me I became somewhat nervous, but really did not anticipate for a moment that she would carry her threat into execution.”66 Another man sustained a knife wound which severed a major artery in the leg. In the preliminary examination a witness stated through his translator, “she told him she was going to cut him, he did not believe it; did not mind it.”67 The third managed to dodge the fire from his wife’s .44 caliber handgun and lived to tell the preliminary examiner, “I had an idea from the click the third time that it was only a bluff she was making, but it went off.”68
The press sometimes portrayed female defendants as irrational, fickle and weak. The following is the San Diego Union version of the last incident.
Because her husband annoyed her, Mrs. Kirven, a lady of color, living on G street, near Third, drew a big 44 calibre British Bulldog revolver and took a snap shot at him. Luckily, she was a woman, and as women are seldom known either to throw a stone or shoot a pistol straight, the husband escaped unscathed.69
Another news story headlined
SHOT IN THE BACK
DR. BLACKENSTONE BADLY WOUNDED BY HIS WIFE
DID IT BECAUSE SHE LOVED HIM
When spoken to on the subject of the attempted murder she would betray the passions of love and hate in quick succession, one moment bewailing the fact that she had shot “her loved one” and wishing “Oh, my God, he must not die!” and the next moment calling him a “dirty liar,” and asserting that he abused her horribly…One minute she would show by her manner that she still intended harm to her husband, but when reminded that he was lying dangerously wounded remorse would seize her again and she would burst into fit of weeping.70
Some middle and upper class women, although economically dependent upon spouses, boldly questioned the cult of femininity by joining suffrage groups or wearing mens’ clothing.71 Nineteenth century authors have characterized California women as willful, adventurous, self-possessed and charming and, thus, the writers made the earliest notations of the legendary independence of California women.72 This trait may have found expression in a few female defendants, who may not have been middle class, but whose audacity and anger nevertheless contradicted feminine ideals of refinement, purity and lack of passion. Indulging in some humor, the San Diego Union may have exaggerated the following incident.
Last evening a woman became quite belligerent on the street in front of Till Burns’ saloon. She had imbibed too much alcoholic stimulants in a rear room devoted to the female patrons of the saloon, and when she came out she gave vent to her hilarity by staving in the glass front of the establishment. She had smashed a large pane of glass when a man named James Meade interfered. He was soon knocked out, and another man also measured his length on the ground, to the great amusement of the large crowd that had gathered. Officer Smith then rushed in, and with the assistance of three others, secured the woman, who was locked up…73
In only three of the seventeen superior court cases was any evidence found of defendant drinking. The newspapers, however, reported a number of intoxicated female assailants who faced misdemeanor charges in the justice courts.
Violating the feminine stereotype could be dangerous in the courtroom. A divorced woman, who by her own admission had indulged in an extramarital affair, quarreled with her ex-husband over child custody. In the heat of the argument she shot at him three times but inflicted negligible injury. The court convicted the unrepentant woman of assault with a deadly weapon and condemned her to prison. The judge may have been influenced by Lombroso’s idea of a female “born criminal” when he sentenced her the maximum of two years.
The crime with which you are charged is a most heinous one, and in attempting to carry it out, you showed a cool and deliberate purpose that to my mind indicates that you are possessed of a cruel and wicked disposition, or that your mind must be that of a degenerate, uncontrolled by moral principles to any extent.74
Feminist reformers campaigned against the principle of all male juries, partly because they believed that male jurors were too easily swayed by the defendant’s ability to conform to common ideas of the woman’s role and to depict a previously good reputation, rather than by the hard evidence of the case. Thus, courts sometimes freed guilty assailants who portrayed the proper female stereotype but unjustly punished innocent defendants who did not.
Feminists abhorred the fact that in some cases the woman’s reputation was investigated more than her crime. In 1889, a young Swedish national accused a man of impregnating her, refusing to marry her and, later, enacting an elaborate scheme to poison her in such a way that her death would appear a suicide. Although the public was sympathetic with her predicament and her limited ability to speak English, she failed to get him convicted in superior court. The prosecuting attorney stated in his closing speech,
If her story is not true she must have concocted this scheme to send this man to San Quentin. She must have concocted the most damnable scheme ever perfected by a woman. Look at that girl as she sits there. Can you say that a girl like her could concoct such a scheme? Does she look like an adventuress? Does she not bear every impress of an honorable young lady? The defendant testifies and admits everything that can cast shame on this girl…His conduct shows nothing but brazen effrontery.
Not satisfied with ruining the young girl, he also says that he had reason to suspect that the young lady had something to do with some one else. The defense has not been able to find one man who could come here and swear against the virtue of this girl.75
In the courtroom during a second trial she shot the accused, wounding him seriously in the neck. An outpouring of financial aid from sympathizers and the Swedish consul to support her legal defense contributed to the court’s dismissal, several months later, of “cases against everybody whoever did anything wrong.”76
The murder and assault data reveal several patterns of crime allegations. Women usually attacked men rather than other women; minorities comprised a greater proportion of female defendants than of male defendants; and domestic conflicts, more often than any other cause, incited women to violence against husbands, lovers, siblings or children. Accordingly, defendants most frequently attacked a victim within (rather than outside) their ethnic group.
Compared to men, female representation in superior court cases seem low. This may reflect the low female to male population ratios that characterized California from 1850 to 1890. Only two women defendants out of two hundred sixty-nine murder cases and seventeen out of six hundred and four assault charges were on record. Overall, women defendants comprised 2.2 % of all murder and assault cases. Although statistics of different locales are often incompatible, it is noteworthy that an 1890 U.S. census of prisoners convicted of these crimes and several homicide studies in Europe showed higher female to male ratios.
Women probably committed a larger proportion of violent crimes than is indicated by the superior court cases. A search of the San Diego Union revealed an additional fifteen alleged assaults that never reached superior court. Accused male assailants reported by the newspaper were far more likely to turn up in the superior court records. An undetermined number of infanticides and fatal poisonings, both typically “female” murders, may have gone undetected.
The numerical disparities in convicting and sentencing women accused of assault related crimes, relative to the overall averages, implied lenient treatment by the courts. In addition, the seventeen defendants, overall, inflicted comparatively serious injury to their victims, suggesting that only the more flagrant cases reached superior courts.77 Other evidence indicating mild justice was found in records and testimonies such as the following statement by a superior court judge.
It is with great reluctance that the court pronounces judgement upon you. Not only from the fact that you are a woman, but that of almost tender years as you are, you are the mother of a child upon whose head the effect of your crime and imprisonment will rest heavily through all his life. With a knowledge of these facts, it is only a sense of duty therefore…that impels me to inflict upon you the severe penalties of the law…78
The reluctance of all-male juries to convict and sentence women for violent crimes has been documented elsewhere. Regarding poisoning cases Randa Helfield argued that “the presumption of innocence was stronger with respect to women than men because that presumption best accorded with the stereotypes of the day.”79 Backhouse maintained that “most judges and juries refused to convict the female perpetrators of infanticide, even in cases of gruesome and indisputable evidence.”80
Contemporary criminal theory may underlie some of the mild treatment for women accused of violence. Respected scholars, particularly Lombroso, suggested that women’s “biological” differences made them inherently less criminal. Lombroso argued that most women prisoners, except those of “primitive” races, were occasional offenders. Concurrently, a disproportionate number of women incarcerated in this study and nationwide for violent offenses were American Indian or African American.
Another factor may have been compassionate judges and juries who viewed females as continent, docile and virtuous, and who understood the social stigmas that criminal proceedings cast upon women defendants. The sample of quotations in this article revealed the subservience, dependence and chastity that were part of the Victorian cult of femininity. State and local laws in California encouraged a submissive and domestic role for women. Court officials, when faced with a direct contradiction to the popular female stereotype, such as a murderous woman, often could not accept the inconsistency and continued to treat the defendant as if she were inherently less violent than men.
1. Lawrence M. Friedman and Robert V. Percival, The Roots of Justice: Crime and Punishment in Alameda County, California 1870-1910 (Chapel Hill: University of North Carolina Press, 1981), 151 .
2. Calculated from material in Peggy C. Giordano, Sandra Kerbel, and Sandra Dudley, “The Economics of Female Criminality: An Analysis of Police Blotters, 1890-1975,” in Women and Crime in America, ed. Lee H. Bowker (New York: Macmillan,1981), 71.
3. The Toronto study also suggested that female violent crime arrest rates from 1859 to 1955 followed an international “U” curve of crime rates, declining sharply during the latter nineteenth century and rising again in the mid-twentieth century. See Helen Boritch and John Hagan, “A Century of Crime in Toronto: Gender, Class and Patterns or Social Control, 1859 to 1955,” Criminology, 28 (1990): 588.
4. Otto Pollak, The Criminality of Women (Philadelphia: University of Pennsylvania Press, 1950), xviii.
5. Previous research on sex crime cases in the three counties supports the claim of unequal treatment of gay men compared to lesbians. A number of cases were found in which males faced the charge of the “infamous crime against nature,” but nothing analogous was found for lesbians.
6. One exception was intra-family assaults.
7. Pollak, The Criminality of Women, xvii-xviii. J. M. Beattie’s recent study of female criminality in eighteenth century England suggested that women were more likely to resort to violence in the city than in the country. The difference in the two areas “reflects on the one hand the relative absence of restraints on the behavior of women in the city, especially on the very large numbers who lived in lodgings. , and it reflects too the difficulties that so many women experienced in the city. In a rural community paternalistic controls might restrict behavior, but at the same time they also provided more cushions against adversity and more protections against extreme disaster.” See J. M. Beattie The Criminality of Women in Eighteenth Century England,” Journal of Social History 8 (1975): 109.
8. Ibid., xvi.
9. Murderesses were discovered to possess the most anomalies and swindlers the least.
10. William Ferrero and Caesar Lombroso, The Female Offender (New York: D. Appleton and Company, 1895), 103-115. Many subsequent scholars have analyzed Lombroso’s work. Some of these include Carol Smart, Women, Crime and Criminology: A Feminist Critique (London, 1977), 27-46; Pollak, The Criminality of Women, xviii; and Annette Brodsky, ed. The Female Offender (London, 1975), 17-19.
11. Lombroso, The Female Offender, xvii.
12. In 1968, Cowie, Cowie, and Slater emphasized physical causes for female criminality. “Differences between the sexes in hereditary predisposition (to crime) could be explained by sex-linked genes. Furthermore the female mode of personality, more timid, more lacking in enterprise, may guard her against delinquency.” See J. Cowie, V. Cowie and E. Slater, Delinquency in Girls (London: Heinemann Educational, 1968), 167; quoted in Carol Smart, “Criminological Theory: Its Ideology and Implications Concerning Women,” in Women and Crime in America.
13. Pollak, The Criminality of Women, 129.
14. The category of “Murder” encompassed first and second degree murder and manslaughter. “Assault” referred to assault to murder and assault with a deadly weapon. “Miscellaneous crimes” included arson, petty larceny, burglary, perjury, bigamy, abduction, forgery, passing bad checks, placing an obstruction on a railroad track, embezzlement, fraud, mailing an obscene letter, counterfeiting, and various federal offenses.
15. Ibid., 128-129. This subject, like most in female criminology, has in subsequent years produced little consensus. See Allison Morris, Women, Crime and Criminal Justice (New York: B. Blackwell, 1987), 46-52.
16. Morris, Women, Crime and Criminal Justice, 46.
17. California usually sent its women convicts to San Quentin. The female inmates, segregated from the men, lived in a building within a walled compound inside the prison. The women were allocated less space than the men and their condition was somewhat harsher, nevertheless, they seemed to adjust to prison life better. It was not until 1927 that officials moved the women to a new facility (to be known informally as the Hen House) a short distance away. See Kenneth Lamott, The Chronicles of San Quentin: The Biography of a Prison (New York: D. Mackay Co., 1961), 216-218. See also Shelley Bookspan, A Germ of Goodness: The California State Prison System, 1851-1944 (Lincoln: University of Nebraska Press, 1991).
18. Seventy-three percent of the female inmates, including foreign-born Europeans, were Anglos. However the minority portion increased rapidly from 1900 to 1910. Although San Francisco County accounted for only twenty-one percent of the women in California between 1890 and 1910, the area contributed fifty percent of prisoners, most of whom were convicted of grand larceny. San Quentin Prison Register, California State Archives, Sacramento, California. U.S. Department of Commerce, Bureau of Census, Eleventh Census, 1890. Population of the United States: vol. 1, Part. 1 (Washington, 1895), 756; Thirteenth Census, 1910. Population: vol. 2 (Washington, 1913), 169, 175.
19. U.S., Department of the Interior, Census Office, Compendium of the Eleventh Census: 1890. Part II (Washington, 1894), 179, 199. In addition to relative participation in arrests, the number of women residing in prison may be affected by individual state pardon policies, sentencing requirements, and crime definitions.
20. For information on criminal treatment of African Americans in the late nineteenth and early twentieth century South, see Edward L. Ayers, Vengeance and Justice: Crime and Punishment in the 19th Century American South (New York: Oxford University Press, 1984); Stewart E. Tolnay and E. M. Beck, “Black Flight: Lethal Violence and the Great Migration, 1900-1930,” Social Science History (Fall 1990): 347.
21. The author created the assault crimes database in 1989. See “Treatment of Minorities Charged with Assault Related Crimes in California, 1880-1910” forthcoming in Southern California Quarterly. In the prior year, Clare V. McKanna, Jr. compiled the murder database which has formed the basis of several articles including “The Treatment of Indian Murderers in San Diego, 1850-1900,” Journal of San Diego History 36 (Winter 1990): 65-77.
22. Robbery was considered a crime against the person since property was taken from the personal possession or immediate presence. Robbers used “force and fear,” and sometimes injured their victims.
23. Seventh Census of the United States, 1850 (Washington, 1853), 982 (1852 data); Tenth Census, 1880. Population of the United States: vol. 1 (Washington, 1883); and Thirteenth Census, 1910. Population: vol. 2 (Washington, 1913), 175, 177, 179.
24. The Chinese also had a high victim to defendant ratio. However, most were victims of robberies rather than assaults and sustained lighter injuries. See Parker, “Treatment of Minorities.”
25. During the gold rush in Tuolumne County men murdered ten women. Quarrels with acquaintances rather than domestic conflicts caused most disputes. Murders by women did occasionally occur during the Gold Rush era outside of the county. In 1851, the San Francisco newspaper, the Alta, reported the hanging of a Mexican woman for the fatal stabbing of a man in Downieville. According to the press account “She was immediately arrested, tried, sentenced, and hung at 4 o’clock in the afternoon of the same day…Some five or six hundred witnessed the execution…” The vigilante action outraged press and public and darkened Downieville’s reputation for years afterward. See Joann Levy, They Saw the Elephant: Women in the California Gold Rush (Hamden, Conn.: Archon Books, 1990), 85.
26. Calculated from the Eleventh Census, 1890. Population of the United States: vol. 1, Part 1 (Washington, 1895), 196, 199.
27. Pollak, The Criminality of Women, 81. Present day rates in California are also much higher. From 1985-1987, females averaged about ten percent of the total homicide convictions in superior courts. See Rita J. Simon and Jean Landis, The Crimes Women Commit, The Punishments They Receive (Lexington: Lexington Books, 1991), 68.
28. Female poisoners normally used arsenic, obtainable under the guise of rat poison or insecticide. Other poisons included cyanide and bichloride of mercury. See Pollak, The Criminality of Women, 17; Randa Helfield, “Female Poisoners of the Nineteenth Century: A Study of Gender Bias in the Application of the Law,” Osgoode Hall Law Journal 28 (1990): 53.
29. Pollak, The Criminality of Women, 16.
30. J. D. Harvard, The Detection of Secret Homicide (London, 1960), 39, cited in Helfield, Female Poisoners, 58.
31. San Luis Obispo Tribune, 23 May 1874.
32. James M. Kerr, The Codes of California: As Amended and in Force at the Close of the Thirty-Seventh Session of the Legislature, 1907 (San Francisco: Bender-Moss Co., 1908); James M. Kerr, Biennial Supplement to Kerr’s Cyclopedic California Codes and Henning’s General Laws (San Francisco: Bender-Moss Co., 1910).
33. To separate infanticide from abortion, California law stated that a baby must be born alive before its killer could be prosecuted for murder. Unborn fetuses were not declared “alive” until the mid-twentieth century. See Univ. West Los Angeles Law Review, 111 (1971): 180, 181.
34. Kathy Laster, “Infanticide: A Litmus Test for Feminist Criminological Theory,” Australia and New Zealand Journal of Criminology 22 (1989): 151, 153.
35. Eric Jarvis, “Mid-Victorian Toronto: Panic Policy and Public Response 1857-73,” Ph.D. dissertation, University of Western Ontario, 1978: 134, quoted in Constance B. Backhouse, “Desperate Women and Compassionate Courts: Infanticide in Nineteenth Century Canada,” University of Toronto Law Journal, 34 (1984): 447, 456.
36. Backhouse, “Desperate Women and Compassionate Courts,” 475. Beattie’s study of English female defendants found that “Judges and juries went out of their way in the eighteenth century to find evidence that would justify acquittal and it was rare in Surrey for women to be found guilty of infanticide.” Beattie, “The Criminality of Women,” 84.
37. Backhouse, “Desperate Women,” 458.
38. Ibid., 448-449; Laster, “Infanticide: A Litmus Test,” 153.
39. However, by today’s standards, marriages seldom ended in divorce and probably kept many incompatible couples together. The 1880 rate, 0.4 divorces per thousand population, rose to 0.9 in 1910 and by 1945 climbed to 3.5. United States, Department of Commerce, Historical Statistics of the United States, 1789-1945: A Supplement to the Statistical Abstract of the United States (Washington, 1949), 49.
40. Robert L. Griswold, Family and Divorce in California, 1850-1890: Victorian Illusions and Everyday Realities (Albany: State University of New York Press, 1982), 25-30.
41. Susan Gonda, “Not a Matter of Choice: San Diego Women and Divorce, 1850-1880,” Journal of San Diego History 37 (Summer 1991): 195-213.
42. Calculated from the Eleventh Census, 1890. Population of the United States: vol. 1, Part 1 (Washington, 1895), 197, 200.
43. J. M. Beattie, “Criminality of Women,” 90.
44. People v. Muary, case no. 11300, 2 May 1900, San Diego County Superior Court, Research Archives, San Diego History Center.
45. The likelihood that most of the female robbers at San Quentin acted as accomplices is indicated by the short average sentence and the large number taken out as witnesses. See San Quentin Prison Registers.
46. San Quentin Prison Register.
47. Prosecution time was ascertained to be the number of days between the date of Information and the date of the verdict. Delays were seen as benefiting the defendant more than the victim.
48. See Parker, “Treatment of Minorities.”
49. The proportion of minorities was somewhat lower for women inmates convicted of homicide and robbery.
50. California courts apparently have continued lenient sentencing of female convicts. In 1987, superior court convictions including homicides, robberies, assaults, burglaries, thefts and drug law violations resulted in a 19.5% rate of sentencing to prison for women verses 35.6% for men. See Simon and Landis, The Crimes Women Commit, 82.
51. Prior to her conviction, one of the defendants had a similar case dismissed two years earlier. See People v. Pilar, case no. 805, 2 February 1886, and People v. Pilar, case no. 383, 7 December 1882, San Diego Superior Court. Three previous articles also argue that Indian defendants received harsh treatment from the criminal justice system. See McKanna, “Indian Murderers”; Parker, “Treatment of Minorities”; and Richard W. Crawford, “The Whiteman’s Justice: Native Americans and the Judicial System of San Diego County, 1870-1890,” Western Legal History 5 (Winter-Spring 1992).
52. Tenth Census, 1880. Population of the United States: vol. 1 (Washington, 1883); Eleventh Census, 1890. Population of the United States: vol. 1, Part 1 (Washington, 1895), 756.
53. See Florence Shipek, The Autobiography of Delfina Cuero (Menlo Park: Ballena Press, 1991).
54. Afterwards, Native American participation decreased rapidly perhaps due to the passage of the Major Crimes Act which transferred felony crimes committed by Indians on reservations out of superior courts and into federal jurisdiction.
55. San Diego Union, 30 May 1893.
56. People v.Edgar Vincent, case no. 7601, 17 June 1893, San Diego County Superior Court.
57 Although the newspaper heaped disproportionate abuse upon Indians accused of violent crimes, it stoutly defended the rights of local “civilized” bands against federal initiatives to remove native people to reservations.
58. Robert V. Wells, “Women’s Lives Transformed: Demographic and Family Patterns in America, 1600-1970,” in Women of America: A History, eds. Carol Ruth Berkin and Mary Beth Norton, (Boston: Houghton Mifflin Co., 1979), 22; Mary P. Ryan, Womanhood in America from Colonial Times to the Present, 3d ed. (New York: F. Watts, 1983), 19-31.
59. Ryan, Womanhood in America, 175; Edith Hoshino Altbach, Women in America (Lexington: Heath, 1974, 25-29.
60. People v. Hahn, case no. 8420, 17 October 1894, San Diego County Superior Court.
61. San Diego Union, 4 August 1887.
62. Joan N. Jensen and Gloria Ricci Lothrop, California Women: A History (San Francisco: Boyd and Fraser, 1987), 21.
63. Alice Park, Women Under California Laws. Pamphlet. (1910), 3.
64. David Rosenberg, “Coverture in Criminal Law: Ancient ‘Defender’ of Married Women,” University of California, Davis Law Review, 6 (1973): 83, 87.
65. Cal. Penal Code, sec. 26 (West 1988).
66. San Diego Union, 27 June 1889, 28 June 1889. Evidently, charges stemming from this shooting were not filed in superior court.
67. People v. Pilar, case no. 805, 2 February 1886, San Diego County Superior Court.
68. People v. Florence Kerven, case no. 12141, 18 March 1903, San Diego County Superior Court.
69. San Diego Union, 11 March 1903.
70. San Diego Union, 28 June 1889.
71. Jensen and Lothrop, California Women, 20-21.
72. Ibid., 1.
73. San Diego Union, 4 April 1888.
74. San Diego Union, 4 April 1901; See People v. Lynch, case no. 11565, 13 February 1901, San Diego County Superior Court.
75. San Diego Union, 5 December 1889.
76. The case against Bertha Johnson was not in the superior court records. The San Diego Union covered it February 13, 14, and 15, 1890. See People v. William Mayne, case no. 3812, 15 October 1889.
77. Preliminary examinations usually provided detailed testimonies from doctors attending the victims.
78. The People v. Lynch, case no. 11565, 13 February 1901, San Diego County Superior Court; San Diego Union, 30 April 1901.
79. Helfield, “Female Poisoners,” 101.
80. Backhouse, “Infanticide in Nineteenth Century Canada,” 475.
Linda S. Parker is Associate Professor in the Department of American Indian Studies at San Diego State University. She holds a Ph.D. in history (1979) and a J.D. degree (1985) from the University of Oklahoma. Dr. Parker is the author of Native American Estate: The Struggle Over Indian and Hawaiian Lands (University of Hawaii Press, 1989).