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Guilty as charged! Yet, free.

In collaboration with research assistant Katie Stobbe


In a previous post, Mélanie and Hannah revealed that Miss Day was well aware of the existence of his legitimate wife when she married Frederick Knight. When sentencing the bigamist, Victorian Judge Cussen sent Knight to jail for only 6 months, bearing in mind that his illegitimate wife was not quite so innocent as she made out. In the 1925 McCracken case, the Western Australia courts went further and under section 337 (2) of the 1902 Western Criminal Code, charged Doris Clarabell Tough “with having gone through the form of marriage with James Owen McCracken, well knowing him to be lawfully married.” Although present in all Australian criminal codes, few individuals have been prosecuted for the offence of knowingly marrying someone who was already married. As a result of its exception, the McCracken case deserves our attention.


State Records Office of Western Australia, series 672, consignment 4171, item 15, “Prison Registry”.

THE BACK STORY

At 17, James Owen McCracken married Dorothy Kathleen Holdaway (27), who was the mother of a five-year-old boy. James did not ask his father’s consent, falsely presenting himself as the legal age of 21 while Dorothy also lied about her age, presenting herself as a mere 23.



State Records Office of Western Australia, series 122, consignment 3473, case 5475, “McCracken”.


Dorothy and James had met in May 1922 but married only in June 1923. Less than a month after making their union official, the newlyweds welcomed a daughter. The couple announced the arrival of their bundle of joy in The West Australian and in the Sunday Times. It seems they experienced problems early in the marriage since in August 1924, Dorothy, seven months pregnant with their second child, filed a maintenance order against James, who had deserted her and their little girl. Before Dorothy could give birth to the couple’s son, James married nineteen-year-old Doris Tough, a young woman he had met only a few months earlier at Perth’s popular Scarborough Beach.



https://thewest.com.au/news/wa/life-was-a-beach-at-simple-scarborough-of-old-ng-b881047374z


According to newspaper reports, after seeing the two love birds spending time together, Doris’ mother asked James what his intentions were, more specifically “whether he would marry Doris?” James replied that he intended to ask Doris soon. Not only had James already asked his sweetheart, but had also confessed to Doris that he was a married man and a father, vowing he did not love his wife. Perhaps if the matriarch had known of the young man’s other commitments, she would not have encouraged the nascent relationship between James and her daughter.


Probably afraid of being caught lying, James let his “bride to be” go fetch the marriage license, making sure that she gave a different last name (Rutherford) and lied about his age. Contrary to other women caught in bigamy intrigues, Doris exercised great agency. She obtained her mother’s consent and also secured her father’s written consent, after learning that it would be necessary. She applied for the marriage license, and according to her statement, paid for the registration fee. These various actions reinforce the active role Doris played in bringing about the bigamous marriage. On September 27, 1924 (yes! only a month after Dorothy charged her husband of desertion!) the teenagers married at a Perth marriage registry in front of two witnesses, one of them a friend of Doris. After a few months of conjugal life, James found work in his native town of Wickepin, situated some 200 km away from Perth, increasing the distance between him and his legitimate wife, who according to her statement was now receiving State welfare assistance.



State Records Office of Western Australia, series 122, consignment 3473, case 5475, “McCracken”.


THE BIGAMY CHARGE

Following their nuptials, the teenagers enjoyed only a short honeymoon. At the end of March, one Officer Campbell, a local Wickepin man well-acquainted with the accused, arrested James, armed with a warrant charging him with bigamy. Campbell tried his best to provide a defence for the young man, asking him if he knew what he had done? If he was drunk? Or if he had his father’s consent? The officer expressed surprise as how McCracken was able to marry two women. The adolescent replied that he lied about his age in both instances, and about his name the second time.

Despite all the help he was receiving from the local officer, James pled guilty. Since there was no contest, why was Doris also charged?


On the day after newspapers summarized witness depositions, Constable Read, who had lodged the complaint about McCracken on March 13, 1925, received a visit from Doris. The young woman asked him if he could keep her name out of the papers. After asking a few questions of his own, Detective Read decided to lodge a complaint against her for having knowingly married McCracken. It was the first time an individual was accused under this section of the bigamy offence in Western Australia, but was certainly not the last!


Interestingly, newspapers described Doris as an agent of her own faith. Reporters used action verbs, informing readers that the young woman introduced the person who served as a witness at their marriage to the groom. Furthermore, Doris “gave notice to the registry”, while James and the accused “arranged between themselves that he should marry under the name of Rutherford.” Indeed, Doris was no passive Violet. She not only felt emotions but acted consciously. “She knew his wife had his children,” or as most papers included: “she married him because she loved him”. According to the local Truth, Doris even “called at the detective office. She “said ‘What is my name doing in the paper? Can you keep it out?’” Despite her youth and her sex, the teenage bride acted and as such defied gender roles.


THE OFFENDERS AND THE VICTIMS

Nearly all newspapers covering the case painted the legitimate wife as its main victim. James “deserted her, telling her that he desired his freedom and would be better off paying her £2 a week. But he had paid her only £2 voluntary since then. There were two children from the marriage.” Papers clearly sided with the mother of three. The West Australian set the tone with a telling title: “Offenders Leniently Treated”. The plural form indicates that the paper considered Doris as guilty as James. Truth even specified: “In these cases the woman who has been illegally married is the victim of deceit of the male, but in this particular instance the police investigation led to the conclusion that the female concerned was as much to blame as the other party to the illegal union.”

Western Australia’s Chief Justice McMillan not only identified McCracken’s legitimate wife as his victim but told James: “Worse still, [you] had no thought for the welfare of your two children- in fact, your conduct was bad all through.” The judge did not have better things to say about Doris: “His Honour said that she had done a very foolish thing and had brought the trouble on herself. It was not necessary in her case to send her to gaol with the idea of deterring other girls from committing similar offences, because it could be safely left to the common sense and decency of the young women of the community not to follow in her footsteps.” All conferred agency to Doris, but it was misplaced agency. The Chief Justice established that the girl lacked practical judgment and morality. Other women would know better and would have acted according to the expectations of their sex, something Doris had clearly failed to do.

James was sentenced to 6 months hard labour in jail, but Doris, though found guilty, was released on bond. Even if she did not act according to her gender, still ,she was a woman and as such judges were more reluctant to impose jail time.

*We want to thank Western Australia senior archivist Damien Hassan for providing a picture of the prison registry, and Jennifer Grose, project support officer, for digitalizing the case files.


REFERENCES:

-State Records Office of Western Australia, series 672, consignment 4171, item 15, “Prison Registry”.

-State Records Office of Western Australia, series 122, consignment 3473, case 5475, “McCracken”.

-State Records Office of Western Australia, series 122, consignment 3473, case 5476, “Tough”

“Family Notices”, The West Australian, July 14, 1924.

“Family Notices”, Sunday Times, July 15, 1924.

“Police Court”, The West Australian August 11, 1924.

“A Youthful Bigamist”, The Daily News, March 27, 1925.

“Youthful Bigamist”, The West Australian, March 27, 1925.

“Bigamy Charge”, Mirror, March 28, 1925.

“Woman Committed for Trial”, The West Australian, April 2, 1925.

“Simplicity of Youth”, The Daily News, April 7, 1925.

“A Youthful Bluebeard”, Truth (Perth), April 11, 1925.



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