An integral part of the A Level English Language course was studying how gender can influence men and women’s language. We studied texts starting from the 18th Century to the present day, analysing how language has portrayed women as inferior and subordinate to men in society, and how men use language to dominate and show their authority. A key motif that was recurrent throughout my study of the course was the ’male as the norm’ concept that has been widely accepted in society for a number of years, with many texts concentrating on the idea of a society being androcentric in nature. I found it interesting to explore how language seems to have preserved an outdated, sexist notion that women are deficient and lacking in society. Interestingly, this concept was also prevalent in areas other than language study. Whilst working on an extract of ‘’Jane Eyre’’ in Theatre Studies at AS Level, we explored how the women characters in the play were perceived as occupying subservient roles in society, purely as a result of their gender. It was not surprising to see that the male characters were consistently viewed as superior. This sparked my interest in the idea of equality between men and women in society, prompting me to explore whether sexist attitudes have been upheld in modern society. I read an article that uncovered many intriguing facts about inequalities between the genders that are prevalent all over the world today, which further heightened my interest in the topic of equal rights for men and women. I intend to study Law at university with a particular interest in Criminal Law and I aspire to become a criminal barrister in the future. Therefore, I decided to link two topics that I am passionate about, combining the study of equal rights for men and women with the Criminal Justice System.
In this essay, I hope to discover whether inequalities between the two genders exist in the Criminal Justice System. I aim to explore the reasons as to why they are treated differently, including some discussion of the historical background and analysing examples of different cases from different countries where inequalities between men and women within the Criminal Justice System are prevalent, in terms of sentence type and length. I will explore societal views and values that could potentially contribute to the differential treatment of males and females, and I will discuss a variety of different theoretical frameworks, including early classical theorists and more recent feminists. To support my ideas and research, I will be referring to two key theories relating to the study of the Criminal Justice System and gender – the Chivalry Thesis and the Double Deviance Theory, and discussing evidence and statistics to support or challenge these theories.
To start with, it is important to note the fact that women, on average, commit far fewer crimes than men, and the graph below shows that this has been the case for a number of years. It shows that the population of males in prison has remained above 60,000 over a 10 year period, reaching over 80,000 in 2012, whereas the population of females in prison has consistently remained under 10,000. To be precise, at the end of January 2014, there were 81,045 men and 3,932 females in prison in England and Wales, which equates to around 20 times as many men as women. (Ministry of Justice, 2014)
(Ministry of Justice, 2014)
It is important to acknowledge previous perceptions held by classical sociologists and criminologists who have proposed theories relating to the Criminal Justice System and it’s disparities regarding gender. Theorists commonly concentrate on males due to the fact that it is primarily those who are offenders, and females have occasionally been regarded as less of an issue. Because of this, research into female offenders in the past has been considered unnecessary and could potentially mean there are fewer theories that could explain any bias towards/against women. Writing in 1979, Carol Smart stated ‘’our knowledge is still in its infancy. In comparison with the massive documentation on all aspects of male delinquency and criminality, the amount of work carried out on the area of women and crime is extremely limited’’ (Smart, 1979). Despite this, certain early classical theorists, for example Davis (1961), Pollak (1950) and Lombroso (1895) have examined female offenders and offered reasons and theories as to why males and females have been treated differently in the Criminal Justice System, if this is the case.
The Chivalry Thesis
Numerous writers and theorists have provided evidence to support the Chivalry Thesis, a theory which claims that women are let off relatively lightly by the predominantly male police, judges, magistrates etc. in the Criminal Justice System. (Haralambos and Holborn 2008). The argument that female offenders are afforded leniency has a long history. The early classical theorist, Pollak, claimed in his book that female offenders were treated preferentially in the Criminal Justice System and recipients of male notions of chivalry, due to the fact that it was largely dominated by males. (Tjaden and Tjaden 1981).
He proposed that female offenders were protected from punishment and placed on pedestals during the process, which resulted in their criminal activity being treated with lenience. He also argued that the police, magistrates and other law enforcement officials generally tend to be men who have been brought up to be chivalrous. Because of this, he suggested they are usually lenient with female offenders and therefore fewer women appear in the statistics. It is therefore important to acknowledge that this could potentially affect the reliability of crime statistics to some extent, as the number of female criminals in official statistics could be disproportionately low.
Self-report offending studies, as well as official statistics, do appear to support the Chivalry Thesis. Campbell (1981) carried out one of the first self-report studies which focused primarily on female delinquency, interviewing 66 girls. She compared the data from her study with West and Farrington’s results, and discovered that both of the studies indicated similar results; for every 1 crime committed by a female,1.33 offences were committed by males. When this data is contrasted to the 1976 official figures that show 8.95 male convictions for every female conviction, we can see that women commit far more crimes than reported in reality, implying that a leniency towards women is present in the Criminal Justice System.
Campbell put forward evidence that female suspects were far more likely than male suspects to be given cautions rather than being prosecuted. According to official statistics from 1999, 30.1 per cent of males recorded as offending were given cautions and nearly 70 per cent were convicted. In comparison to this, 47 per cent of female offenders were cautioned and just 50 per cent were convicted. (Home Office, 2000b).
Hillary Allen also carried out similar investigations, basing an examination upon criminal statistics from 1987, the results of which further supported the Chivalry Thesis. 72 per cent of women found guilty of indictable motoring offences were issued fines, compared to a significantly lower percentage of 54 per cent for male offenders. It could be argued that this huge difference in percentage resulted primarily from a higher proportion of men being given prison sentences than women. (Haralambos and Holborn, 2008). Further evidence
(Ministry of Justice, 2014)
to support this is shown in the graph above. It highlights clearly how male offenders were more likely to be given an immediate custodial sentence than females, with women more likely to be given a community sentence or conditional discharge.
However, it is extremely important to consider that the different disposal profiles of the two genders could be attributed to the fact that males and females tend to commit different offence types, with females generally committing less severe crimes, and this could have a significant impact on the data shown.
The majority of crime and gender researchers have not found evidence to support the Chivalry Thesis, with many suggesting that the difference in the severity of an offence could be an explanation for the lower proportions of females serving custodial sentences, rather than leniency being prevalent in the Criminal Justice System (Haralambos and Holborn, 2008). Examining sentencing policies provides evidence, however, to further support the theory that women are subject to leniency in the Criminal Justice System. A study into sentencing in Magistrates Courts carried out by Farrington and Morris in 1983 implied leniency towards women. For example, in 1979, only 6.6 per cent of women found guilty of indictable crimes were actually sent to prison. They also analysed sets of data on sentencing for 408 theft offences in Cambridge that occurred in the same year. Around 110 of the offences were committed by women. Although their research proved that men received on average more severe sentences than women, this disparity disappeared when the seriousness of each offence was considered, which led the researchers to conclude that ’There was no independent effect of sex on sentence severity’’ (Farrington and Morris, 1983), however this is still disputed today.
Criminal justice as biased against women and the Double Deviance theory
The universality of chivalry is constantly being questioned by the paternalism theory, which proposes that preferential treatment is only given to a certain ‘type’ of woman. Whether a female offender received leniency would depend on their fulfilment of their expected roles as females (Herzog and Oreg 2008). Also known as the ‘evil woman’ hypothesis, paternalism suggests that the judiciary not only consider the type of crime committed by the woman, but also how they are positioned as women within societal expectations that surround their gender (Herzog and Oreg 2008). This implies that women who deviate from the ‘gendered ideal’ are accused of double deviance; not only for the crime they have committed, but more so for departing from the conventions of ‘gender-appropriate behaviour’. The Chivalry Thesis contrasts with this Double Deviance theory, which states that women are treated more harshly within the Criminal Justice System due to the fact they are guilty of being doubly deviant. It suggests that because women have deviated from the accepted societal norms by breaking the law as well as deviating from the gendered norm, they are classed as doubly deviant (Trueman, 2015).
George Alagiah, when discussing a high profile child abuse case on the BBC, asked whether it is more shocking and ‘disgusting’ to hear that females were involved in the abuse of the child victims. The reporter agreed with Alagiah and pointed out an interesting fact that there are more females involved in child abuse cases than the public assumes, with 25 per cent of cases involving women (Thwaites, 2009). This triggered an important idea that gendered preconceptions were switching the key focus of the news report from the actual crime itself to the gender of the suspects involved, which ultimately reveals the view that seems to have been established in society today regarding what is considered as appropriate ‘gendered’ behaviour for both males and females. There is no question that the law should certainly be ‘genderless’, however it seems that preconceived beliefs about gender roles in society begin to take effect on juries, the reaction that is elicited from the public, the reports from the media, and ultimately the sentence awarded to the offender.
Men are socially conditioned in a different way to women, and as such both genders have adopted different roles, with this being an ongoing notion in society for a number of years. In the socialisation process, which begins at birth, children are introduced to certain roles that are stereotypically associated with their biological sex. These gender roles refer to society’s view of how men and women are expected to behave in society, based on outdated, sexist attitudes that has led to norms and standards being set out by society and preserved over time. Male roles in society are typically associated with aggression, dominance and authority, whereas the role of a female traditionally involves nurturing, passivity, inferiority and subordination by men, although these views are perceived as sexist and politically incorrect in society today.
Sociologists have suggested that in court cases, it is not the evidence that juries are reliant on when reaching a verdict for a case involving a female defendant, it is whether they are perceived as a ‘good woman’ by society with regards to their role as females and the offence they committed. Carlen (1997) found that if a woman was prosecuted for a violent act they have committed, they were far more likely than men to be convicted and found guilty due to the fact that violence violates the traditional role they are expected to adopt in society. This suggests a possible bias against women in the justice system and a difference in attitude towards the types of crimes committed by men and women due to the gender role they are expected to conform to.
In cases of violence of any kind, gender issues do appear to play a significant role within the Criminal Justice System. Undoubtedly, a common view has been adopted within modern society that has been preserved for a number of years. The archetypal woman is expected to adopt the role of the caregiver and should be predisposed to care for other members of society due to her ‘’natural femininity’’. Therefore, if a woman transgresses this natural order, it is likely that she will be perceived accordingly as something less than the stereotype of a ‘normal’ or ‘proper’ woman (Thwaites, 2009). There is no doubt that any individual harming another, regardless of their gender, should still be considered a terrible crime, however it appears that women are often subject to double condemnation due to certain preconceived views relating to gendered care assumptions and what is perceived as ‘feminine’. A number of empirical studies and commentaries regarding double standards in criminal justice have reached the conclusion that males and females are treated differently and inequitably in the Criminal Justice System (Haralambos and Holborn, 2008). Heidensohn (1985) suggested that women are treated more harshly in comparison to male offenders when they deviate from the societal norms that are prevalent at the time. It appears that the Criminal Justice System is largely influenced by gender attitudes in society as a whole, which are based upon preconceived perceptions of both men and women.
In contrast, it seems that male offenders can act violently without this being viewed as a transgression of the natural male order. Although the violent acts are still condemned, many theorists suggest that such violence is too-often interpreted as the ‘male nature gone too far.’ It appears that violent crimes are sometimes perceived as a part of the masculinity that is embodied by men, and there is a certain societal acceptance of their actions due to apparent sexist ideologies (Thwaites, 2009). The campaign group, Justice for Women, have published a wide range of examples where such inequalities between the sentencing of men and women are prevalent. A prime example where a disparity between the genders clearly exists is when comparing the case of Brian Steadman with the case of Zoora Shah. Steadman killed his wife in 1995 by hitting her with a hammer 13 times. He pleaded diminished responsibility due to the fact his wife ‘constantly nagged him’ and was jailed for just three years. In stark contrast, Shah served nearly fourteen years of a life sentence after she killed her partner. She was subject to a long period of 20 years of violent sexual, emotional and physical abuse and exploitation from her partner, who then went on to abuse one of her daughters. At the initial trial, Shah did not choose to mention the years of violent abuse she had endured, as she did not want to bring shame to her family. However, during her appeal against conviction, Shah admitted poisoning her partner because of his abusive behaviour towards her. The then Home Secretary, Jack Straw, reduced her twenty year sentence to twelve years, but Shah was only released in 2006 after she had served two years longer than her reduced prison sentence. This illustrates that the reasons for a woman’s violence sometimes is not taken into account in comparison to male offenders, and implies a gender-biased view towards what is considered as acceptable provocation within the Criminal Justice System.
The case of the Scott sisters in the USA also exemplifies how women have been given a harsher sentence for lesser crimes of violence in the past. The sisters both received a double life sentence for an armed robbery, in which nobody was injured or killed, and less than 12 dollars was stolen (Papa, 2011). Further evidence to support this gender biased view was published by UK Crime Info. Between 1995 and 2005, the imprisonment rate for women in England and Wales increased by 175% in comparison to an increase of 85% for men. This data alone suggests a greater willingness to sentence female offenders to imprisonment for less serious offences. This therefore contradicts the chivalrous belief, whereby women are said to be treated more leniently in the Criminal Justice System due to the fact they are not considered as being capable of being criminally motivated, and thus are reluctant to sentence them as harshly as men. Elizabeth Stanko (1994) argued that male violence is ‘downplayed’ and ‘normalised’ as it is difficult for people to accept women’s violence, despite any mitigating factors that may exist.
With regards to the data and evidence discussed in this section, it appears that if a woman is violent, she becomes an aberration in the eyes of not only the jury, but also the media and the general public too. Undoubtedly, women who commit violent crimes should too be punished for their actions, however why should it be that women are subject to longer sentences than men for the same type of crime, or even a lesser crime, simply because they are classed as ‘doubly evil’ in the eyes of society? This implies that there are gendered perceptions not only surrounding violence, but also women and men, and if equality is to exist within the Criminal Justice System, then these disparities should be addressed.
Gender bias against men
The graph below shows the prison population of England and Wales, starting from the 20th Century to 2014. As mentioned previously, there are 20.6 times as many men than women in prison. Although it has been proven that men commit far more crimes than women, 20 times more seems like an extremely large difference. In order to gauge the number of crimes that each gender has committed, it is necessary to explore the number of sentences that have passed on a yearly basis, in other words, the number of cases that go to court where the verdict is guilty and a sentence is obligatory. The table below shows that in England and Wales there have been over three times more men sentenced per year than women, and the ratio has fallen between 2006 and 2012. However, this incites a
(Ministry of Justice, 2014)
thought-provoking question. Why are there twenty times more men than women in prison, if only three times more men are sentenced?
year Men sentenced Women sentenced Ratio men:women
2006 1,135,228 277,713 4:1
2009 1,046,281 314,627 3:3
2012 929,720 297,034 3:1
The majority of sentences are fines, suspended sentences or community service, with only a small percentage of overall sentences being custodial. Therefore, possible contributing causes to the disproportionate ratio of men to women in prison could be due to men receiving a longer prison sentence than women, a higher percentage of male offenders being sentenced to prison than women, or the fact that men serve a greater proportion of their sentence (on average). These could be contributing factors to the significantly higher number of men in prison, suggesting that the crimes committed by men are on average much worse than women’s and therefore justifying this disparity. However, when examining the graph below, it reveals that women are substantially less likely to be sent to prison than men for the same type of crime that has been committed, with the exception of drug offences, where the disparity could be considered as negligible. This provides substantial evidence to suggest that men are not being sent to prison more often than women because they are carrying out more serious offences, and therefore implies a gender bias towards women and gender discrimination towards men within the Criminal Justice System.
It is therefore important to acknowledge how the lengths of the sentences the offenders receive varies between the two genders. Studies have shown that in 2009/10, for all crimes committed where a custodial sentence has been awarded, men received a
(Ministry of Justice, 2014)
sentence which was 64 per cent longer than what women received, on average. Once again, this provokes intriguing questions. Is this justifiable due to the fact that men’s crimes are on average more heinous than women’s? Are women being given shorter prison sentences due to the fact that they perpetrate less severe crimes? Or does this arise because of a clear gender bias in the Criminal Justice System? We can see how this notion is further reinforced in the histogram that is shown below, which reveals how the sentence lengths awarded to women and men vary significantly for the same type of crime, over 42 categories of crime in England and Wales. The data suggests that the sentences received by men are markedly longer than those received by women, for the same type of crime for nearly every category, with some slight exceptions. The disparity between the genders in custodial sentence length could therefore be attributed to a bias against men within the Criminal Justice System.
(Ministry of Justice, 2014)
Another point to be considered is the effect of parole for men and women serving custodial sentences. It is interesting to compare the proportions of the sentences that are actually served by both men and women. Studies clearly show that women serve less of their prison sentence in comparison to men; 48 per cent versus 53 per cent on average (Poole, 2012). This, once again, prompts us to consider the important question of whether this is fair or if it is a direct result of gender discrimination against men in the Criminal Justice System. The key issue concerning parole is the behaviour of the offender whilst they are serving their custodial sentence. Many people assume that women are more likely to behave better than male prisoners, however various studies have implied otherwise. According to the Ministry of Justice in 2012, women in prison are subject to 20-50 per cent more prison disciplinary actions than males, per 100 prisoners, which surprisingly included female prisoners being disciplined for violent acts more frequently than men. This suggests a preferential treatment by parole boards of women and once again implies a massive gender discrimination in the Criminal Justice System against men.
To summarise this section, from the data that is shown above, we can conclude that men are more likely to be awarded custodial sentences than females for the committing the same crime, men receive longer sentences than women for the same category of crime and men serve 10% more of their sentence than female prisoners, on average, for no obvious reason (Ministry of Justice, 2012).
The disparity in the treatment of men and women within the Criminal Justice System has ultimately led me to an important question. Can these gender-based differences be warranted? Many people would argue that because there are existing fundamental differences between men and women, treating both sexes in the same way may actually prove to be problematic and controversial, as it has the potential to further disadvantage a group that is already disadvantaged. For instance, it is argued that females are more vulnerable in society and more likely than males to suffer from domesticity, victimisation, poverty and dependency. Therefore, if society recognises the gulf between the specific needs of both genders, could it actually be preferential to treat women and men differently within the Criminal Justice System as a result of their differential circumstances, as long as neither of the sexes find themselves in an unfortunate situation as a result?