Incarcerated women differ from male inmates in their behaviors and needs, especially with regard to medical and family needs. Questions are raised about conduct and standards within the criminal justice system. There are various ways in which justice is gendered. Gender inequalities in daily life are reinforced by language, power, racism, capitalism, colonialism, and patriarchy and their relation to the many ways society is affected by contemporary social thinking. Considering these issues through a gendered lens has implications for how people understand such issues.
Extent of Gender Injustice
According to researchers, full-time working women in the United States in 2011 earned only 82.2 percent of men’s median weekly earnings; women earned less than men in almost all occupations. Female executives are not protected by status, and female chief executives earned only 69 percent as much as their male counterparts, resulting in $658 less in median weekly earnings. Women are more than twice as likely as men to work for poverty wages. Women’s earnings over a lifetime are therefore lower than men’s, resulting in more women than men experiencing poverty in old age. Hispanic/Latina women have the lowest median earnings, at $518 per week, 55 percent of the median weekly earnings of white men; black women have median weekly earnings of $595, 64 percent of median weekly earnings of white men. Viewing criminal justice through a gendered lens reveals the necessity of understanding the social and cultural structures that underpin this wage gap.
The Justice System
The principle of formal equality has always been a primary aim within liberal democratic legal systems. This is a narrow focus that ignores issues of wider social justice. Understanding justice as a gendered concept is more an issue for substantive justice, which is concerned with how the law is applied and the consequences of its application. To recognize justice and the criminal law as aspects of the social order is to invoke a different set of questions to be asked about such social order. R. Quinney makes the following observation:
What is important in the study of crime is everything that happens before the crime occurs. The question of what precedes crime is far more significant to our understanding than the act of crime itself. Crime is the reflection of something larger and deeper.
Quinney’s observation is not necessarily criticizing those who maintain that the act of criminality is the sole responsibility of the perpetrator, but it urges going beyond the individual act and seeking the bigger picture. Employing a sociological analysis of cultural or social forces, gender can be placed center stage to better understand the economic and political structures within society.
Formal equality acts as a framework for the presumption that everyone is equal before the law. It presumes a preexisting “sameness,” but criminology informed by sociology and feminism has recognized the socioeconomic differences that structure social life. Anyone who has sat in a court of law and witnessed the adversarial operation of the law will have noticed that the process of establishing the truth of a case is subservient to the process of establishing guilt or innocence of the parties involved. Many people who are called to give evidence feel that they themselves are on trial and that gendered assumptions run through the operation of the court.
A liberal feminist position might argue that the law should be, and can be, fair and equal to both genders and that any deficiency in process or outcome is a failure to apply its own professional standards rather than a sign of injustice within the law. Criminological theory and research before the 1970s focused on male criminality, with males seen as the normal subjects of criminology. Early theorists on female lawbreaking often employed assumptions about female behavior that were sexist and without empirical support. However, challenges to such views can be found in the work of C. MacKinnon, who argued that the law is not a simple set of coherent values but is complex and maps onto the existing patriarchal order. She argued that the notion of “equal treatment” frequently takes the male experience as the norm, resulting in the different needs of women being ignored. Female lawbreakers were seen as “doubly deviant,” having breached legal rules and gender roles.
One example of this is within the court, where professional comment is often made concerning the family circumstances or employment record in depicting the character of male and female defendants and their lawbreaking behavior. Focus on a man’s employment history will be used to paint a picture of his ability to provide for his family and to appeal for empathy from the jury. Similarly, the homemaking skills of a female defendant will also be highlighted and the presumed normality of heterosexual family relations will be something that defending counsel will use to plea for leniency. Judging men and women in the context of their family roles in this way, the court displays a surface level equality of treatment. But what it is fundamentally doing is preserving gendered difference and this difference may affect the decision making and outcomes of the court. Women are frequently depicted as “bad, mad, or sad” when they fail to meet the idealized standards of femininity.
Women make up a small percentage of the total prison population. In state and federal prisons in
2011, there were 111,387 women offenders incarcerated compared to 1,487,393 male prisoners, which means females composed just 6.7 percent of the 2011 state and federal prisoner population. The national imprisonment rate for males (932 per 100,000 male U.S. residents) was over 14 times the imprisonment rate for females (65 per 100,000 female U.S. residents), according to 2012 Bureau of Justice Statistics. Incarcerated women differ from male inmates in far more respects than a mere comparison of statistical populations suggests. Because of the smaller number of women in prison there are fewer female prisons, resulting in many women being imprisoned at some traveling distance from their homes, which is problematic to the maintenance of family relationships.
There is debate about whether equality under the law is necessarily good for women. The notion of equalization under the law, championing equal rights amendments and opposing any legislation that treats men and women differently, does little to acknowledge the injustices experienced by many men within the criminal justice system. But without doubt, female prisoners tend to react to imprisonment differently. Whereas men may be outwardly violent, women will often turn their feelings of violence on themselves. Empirical studies on prisoner self-harm have been conducted in the United Kingdom (UK) and suggest that this is an important area of study. UK government statistics reveal that, of a female prison population of 4,100, there were 12,663 cases of self-harm during 2010. Females constitute just 5 percent of the UK prison population, yet they account for almost half of all self-harm incidents.
Civil court litigation involving “parity cases” has exposed examples of a lower quality of services available to female offenders, but parity does not simply mean providing women with the same programs and facilities available to men. Programs and services that focus on the male majority in the criminal justice system often fail to identify options that are gender-appropriate to women’s needs.
Ethical Considerations
Feminist analysis of women’s experience of the criminal justice system has opened the door to an examination of equality under the law. Writing in 1976, Carol Smart stated:
The deviant, the criminal or the actor is always male; it is always his rationality, his motivation, his alienation or his victim. And this is more than a convenient choice of words; the selection of the male pronoun may be said to be inclusive of the female but in reality it is not; it merely excludes women and makes them invisible.
Smart made the point that the generic use of the male pronoun also hid men from masculinities under an assumed definitional umbrella with no mention of gender or any other variable. Feminism has gone on to illuminate the complex interplay between structural variables such as class, race, gender, and sexuality, as well as other social definers. Such a process questions all manner of knowledge claims, policy processes, and legal definitions.
Within classical jurisprudence, people can be treated equally through the process of abstraction. This is an intellectual exercise that strips individuals of their social characteristics, differences, and experiences. No longer social beings, they are repositioned as subjects in a legal context. Through abstraction they can be seen as alike and treated alike.
The specific needs of women who come before the criminal justice system go beyond differences in social identity. In terms of substantive justice, women whose experiences and characteristics do not fit the male norm will not experience outcomes that are as favorable as those on whom the law is based. High proportions of female prisoners have experienced family abuse as children and/or as adults and significant percentages have a history of drug or alcohol misuse. Specific responses to these life experiences are needed but women’s (typically) smaller prisons do not have the resources to run such programs. This, together with the low numbers of female prisoners in comparison to the male prison population, means it is not economically viable to offer a range of medical, educational, or rehabilitation programs. A large percentage of female prisoners are also separated from their dependent children, and research suggests that worries about the welfare of their children is a further gendered concern.
Approaches to Equality
Feminist legal theory has identified three main approaches to legal equality. The first is formal equality, which leads to strictly identical treatment under the law. Liberal feminists would point to the utility of this approach to the arguments of the women suffragists in the 19th century whose claims for votes for women were based on the notion of formal legal equality. Similar arguments also underpinned the civil rights movement in securing full citizenship rights for African Americans. The key criticism of this model is that when people are treated the same, the question of “same as who?” points to the myth of the degendered legal subject. If formal equality requires the law to take men’s experience as the norm, then many important facets of women’s lives are ignored.
The second approach to equality suggests that people should be treated alike only to the extent of their similarity. This is an Aristotelian model of justice and where the concept of the scales of justice comes from, with the notion of the blindfolded judge symbolizing impartial justice. In Aristotle’s justice, men’s and women’s differences can be recognized, different social positions acknowledged, and different needs addressed when judgment is made. Finally, the third model argues that women are subordinated to men on the basis of gender. MacKinnon argues that the law itself is a tool of masculine domination and that women will not find equality through the law.
Conclusion
Feminism has a history of examining the unequal treatment of women within criminal justice systems. It has emphasized the need for fair, just, and ethical treatment of women. Prioritizing a need for gender equality before the law may mean ignoring the injustices inherent in the system for men. Focuses on differences between men and women may lead to different conclusions of where injustice lies. If one ignores gender differences, one fails to see the wider political and social contexts in which men and women experience injustice. Taking gender as their lens, individuals can better understand the direction of justice within contemporary society.
Bibliography:
- Arrigo, B. H. Bersot, and B. Sellers. The Ethics of Total Confinement: A Critique of Madness, Citizenship, and Social Justice. Oxford: Oxford University Press, 2011.
- Bureau of Justice Statistics. “Prisoners in 2011.” http://www.ojp.usdoj.gov/bjs (Accessed July 2013).
- Chesney-Lind, M. and B. Bloom. “Feminist Criminology.” In Thinking Critically About Crime, B. MacLean and D. Milovanovic, eds. Vancouver, Canada: Collective Press, 1997.
- Heidensohn, F. “Models of Justice—Portia or Persephone?—Some Thoughts on Equality, Fairness and Gender in the Field of Criminal Justice.” International Journal of the Sociology of Law, v.14/3–4 (1986).
- Hegewisch, A., C. Williams, and V. Harbin. “The Gender Wage Gap by Occupation.” Institute for Women’s Policy Research. (2012) http://www.iwpr.org/publications/pubs/the-gender-wage-gap-by-occupation-1 (Accessed September 2013).
- MacKinnon, C. Towards a Feminist Theory of the State. Cambridge, MA: Harvard, 1989.
- Quinney, R. Bearing Witness to Crime and Social Justice. Albany: State University of New York Press, 2000.
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