- Gabriela Trauttmansdorff
“She’s Not Bad, Just Mad!”: The Embedded Gender Bias Within the Global Criminal Justice System
Does gender truly play a role in the criminal justice system? This article examines the different gender roles that motivate the differing ways in which men and women are arrested, prosecuted, and imprisoned based on how they embody traditional values. Additionally, it provides more detailed information on the demographics of female prisoners, and how their experiences within their own gender actually end up causing them to turn towards crime.
As with facets in everyday life, gender plays an instrumental part in how society treats its members, dictating what traits are valuable and which are not. In Gender and Crime: A Human Rights Approach, Marisa Silvestry and Chris Crowther-Dowery explain that desirable feminine traits include purity, obedience, emotional intuition, and the ability to nurture; in men however, society encourages strength, resilience, protectiveness, and a lack of emotion. These characteristics translate quite differently into crime, and as Silvestry and Crowther-Dowery’s sex role theory states:
“…The traditional values and norms associated with femininity discourage criminal activity and behaviour in women,” adding that, “...The values and behaviours associated with masculinity are conducive to crime amongst men.”
Plenty of statistics exist that back this claim up, for example, the Ministry of Justice 2019 report states that 85 per cent of the total people arrested and 95 percent of prisoners were men, with 85-90 per cent of serious crimes (like violence or robbery) and 98 per cent of sex crimes were men as well. These numbers highlight a clear trend that places men at the centre of most crimes, further emphasising the strong effect of gender roles.
There are many contributing facets to these statistics, one of which being the chivalry hypothesis, which claims that women are less likely to be arrested because the justice system would rather protect than punish them. In An Integration of Theories to Explain Judicial Discretion, Celesta Albonetti argues that a man is more likely to be punished harshly when victimising a woman; however, women are treated with even more hostility when committing a crime typically committed by men. If a woman is accused of a crime that is associated with more masculine traits, she will be subconsciously perceived by society as more male than female, creating a conflict between her actions and her assumed gender role. This tension means that the woman will be met with even more criticism and scrutiny than a man would. For example, in the murder trials of R. V. Palmer (1971) and Sarah Thornton (1991), the defendants committed very similar crimes but were treated quite differently. Palmer claimed that he accidentally stabbed his wife when he pulled out a knife that was originally meant to just scare her. Thornton stated that her husband was threatening her so she took out a knife in self defence and unintentionally stabbed him when he continued advancing towards her. Palmer was charged with manslaughter and ended up serving 5 years in prison whereas Thornton was charged with first degree murder and sentenced to life in prison. Due to the violent nature of Thornton’s crime, and society’s association between violence and masculinity, Thornton was scrutinised heavily by the jury, explaining the disparity in the two trial outcomes.
Additionally, because many societies still see women as the property of either their fathers or husbands, they are not allowed to show defiance by being violent or acting in their own interests. They are ideologically boxed into their roles as mothers, housewives, and dutiful daughters. The United Nations Office on Drugs and Crime provides additional statistics regarding female convicts and their experience with domestic violence. In a 2000 study in California, researchers found that 86% of female prisoners had either experienced sexual or physical abuse, or witnessed it during childhood. This kind of evidence indicates that there is a greater trend of domestic violence influencing crimes committed by females. The source also elaborates on the term ‘battered woman’s syndrome,’ which refers to when a woman resorts to violence and/or crime to defend herself or her children from her abuser. Examining the causes of female incarceration is a vital step in the examination of their treatment in the judicial process.
This discussion leads into how women are treated in comparison to men during criminal court cases. Female defendants that fit into the traditional feminine values of purity, obedience, and submissiveness are treated less harshly by both juries and prosecutors. In her book Doubly Deviant, Doubly Damned: Society’s Treatment of Violent Women, Ann Lloyd states that in court cases, women will often play into their femininity, and if they do this convincingly, are treated better by the court. Additionally, the defence will often try to portray a female defendant as crazy or overly emotional in order to gain a lighter sentence; this works much more often with women, as juries are likelier to believe that a woman will posses these traits over a man. In other words: ‘She’s not bad, just mad!’
Professor Andrea Miller from the University of Illinois conducted a study that examined the influence of gender roles on a judge and jury. According to Miller, studies like these are necessary to reducing the risk of gender bias affecting court decisions, stating that “the state court system has become a leader in the search for evidence-based solutions to the problem of implicit bias.”
In the study, judges and common citizens were asked about their values in regards to gender and then given examples of cases regarding child custody or gender discrimination. They were then told that the defendant was either a man or woman and told to determine what the ruling should be. The results showed that the judges and the common people in support of traditional gender norms did make decisions based on these ideas, mainly associating women with their duties regarding childcare without maintaining these same expectations for men.
Although social awareness of gender bias is more widespread, these studies show that gender still plays a monumental role in the criminal justice system. If the goal is to truly preserve a system that treats its defendants equally no matter their race, gender, ethnicity, or sexuality, issues regarding disparate treatment must be addressed. Through continuously fighting to achieve fair treatment for all citizens, courts around the globe can perform their duties effectively and inclusively.