Research Brief 21
For decades, if not longer, well-meaning parents (and perhaps less well-meaning authority figures in institutional settings) utilised the cane or the belt as an instrument of punishment. These methods are increasingly frowned upon. Corporal punishment has been criminalised in some countries for more than thirty years, and in recent years, Australian courts have banned parents from striking their children with either their hand or an instrument.
This reflects our changing standards and social beliefs around parenting, child rearing, and discipline. Penalties and punishments meted out in the criminal justice system have similarly been affected, particularly the use of the whip as an implement of punishment. By the mid-twentieth century, whippings became increasingly rare. But not as rare as we might think.
Whipping has a long history as an instrument of social control. In early modern Europe, whipping served both as a punishment for law breaking, and as a deterrent to others. Both the military and naval forces had a long history of flogging as a punishment for disobedience or other infringements against the military code. In a civilian context, whipping was the penalty traditionally meted out for minor offences like thieving. Whipping was also combined with other forms of punishment, like banishment. This became a very common form of punishment on the American goldfields, until 1851 when the Californian legislature replaced whipping and exile with hanging.
Whipping (or flogging) was a common form of punishment in early colonial Australia, and used against both women and men. In the early court system, some magistrates awarded quite brutal sentences. In 1816, Joseph Salter and William Doyle were each sentenced to “thrice fifty lashes in the public street” for pig stealing. One of the most infamous magistrates was Reverend Samuel Marsden, “the flogging parson”; the nickname arose from the severe punishments meted out to some of the convicts who appeared before him in the New South Wales Court of Petty Sessions.
During the nineteenth century, changing perceptions of punishment impacted the role of whipping in sentencing. One important shift was the abolition of corporal punishment inflicted on female offenders. Punishment focused more on physical deprivation than physical harm. Instead of whipping, women were subjected to solitary confinement and dietary restrictions. In April 1827, a Hobart newspaper reported that Jane Jackson, who had absconded from her master’s service, was sentenced to solitary confinement for 7 days with only bread and water to sustain her. A decade later Julia Leech, then Matron of the Parramatta Female Factory recorded that as of June 30 1838 15 of the 596 women detained in the Factory were held in solitary confinement.
The second development was that whipping sentences became directed at specific groups in society and increasingly employed for specific offences. In Western Australia, the government passed the Aboriginal Offenders (Amendment) Act 1892 that legislated whippings for minor offences and misdemeanours heard in the magistrates’ court. The Act stipulated 25 strokes as the maximum number possible for an adult male offender, and 12 strokes as the maximum for juvenile males. Larry, an Aboriginal man who had absconded from police, was sentenced in the Roebourne court to 18 lashes with a cat-o-nine tails, and a month in leg irons. An unnamed Aboriginal man was sentenced to the full 25 lashes for stealing from a shepherd’s hut.
Whipping was a common penalty for infractions whilst in prison. This did not always sit well with a fledgling settler society keen to leave its convict years well behind, and flogging prisoners was an uncomfortable reminder of the often arbitrary treatment of convicts and prisoners which had given colonies like New South Wales a brutal reputation. Gaol wardens were keen to reassure governments that such floggings, when warranted, were carried out in a way that could not be distressing to the public. Prison floggings became increasingly rare, although illegal physical punishment of prisoners did sometimes occur. In 1869, a South Australian inquiry heard evidence that prisoners were sometimes beaten with guns and occasionally even with prison bayonets.
But despite the rhetoric, violent punishment retained some acceptability in the minds of many in the community. In some cases, judges were reported as lamenting their inability to order the defendant be flogged, particularly for those convicted of sexual offences against women and children. Certainly, some judges during the first few decades of the twentieth century continued to direct the use of whipping, primarily for these kinds of offences.
Data in the Prosecution Project database shows that sentences often stipulated particular types of striking implements. Into the 1930s and early 1940s, judges ordered whippings with a cane, a leather strap or a birch rod. Others directed whipping with the infamous cat of nine tails. While whippings were in decline, they continued to be applied to offences like robbery in company, robbery with violence, or wounding with intent to do grievous bodily harm. But most whipping sentences occurred following convictions for sexual offences against women and children.
In March 1964, two men were convicted of rape, an offence which at the time attracted a capital punishment. Legislation provided that whipping could be ordered if the death sentence was commuted. In this case, the men’s death sentence was commuted to twelve and eight years imprisonment respectively. But they were not whipped. An unsigned submission to Cabinet argued that NSW did not have the “appropriate facilities” to carry out a whipping sentence. The prisoners would need to be transferred to another state which, the submission surmised, “would give rise to unfavourable public opinion”. The advice was to avoid this complication, and so neither man received a whipping for their crime.
In Queensland, whipping stayed ‘on the books’ in the Criminal Code until the mid-1980s. These specifically related to sexual offences like ‘the abuse of children’ (s. 213), and ‘indecently dealing with girls under 16’ (s.216). However, judges utilised sentencing options other than corporal punishment, and the provisions became redundant. The Queensland Parliament moved to remove all provisions for whipping by passing The Criminal Code Amendment Act 1986. The Act was assented to on the 6th March, 1986, effectively removing all references to whipping from the relevant sections of the Code.
Author: Lisa Durnian
To cite this research brief: Lisa Durnian, ‘Whipping as a criminal punishment’, The Prosecution Project, Research Brief 21, https://prosecutionproject.griffith.edu.au/whipping-as-a-criminal-punishment (14 March 2016, viewed 19 July 2016).
References:
- Mark Finnane (1997). Punishment in Australian Society. Oxford University Press.
- Trove digitised newspaper database. National Library of Australia.