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Gender sensitivity is critical in the running of the criminal justice system. The debates regarding gender have been mostly focused on the roles of men and women in society and equality in accessing employment opportunities and other services. The criminal justice system has equally attracted such debates regarding the treatment of convicted criminals based on their gender.
Indeed, the gender of criminals has influenced the functioning of the criminal justice system where the treatment has been disparate depending on whether the criminal is a man or woman. On the one hand, female criminals on average attract lighter sentences and receive less harsh punishments in prisons while men seem to experience little mercy in the sentencing and punishment.
Women, however, receive little, if any, attention once in prisons, making them denied vital services that they may need while men are known to be more aggressive when demanding their rights in prisons. The history of women behind bars is limited as women are not associated with violent or criminal conduct; this history also affects the way they are treated. Women who get arrested while they are pregnant are also subject to a specific treatment. The differences in how both men and women are treated are numerous and abundantly clear as the justice system does not conceal them that much.
Gender equality and equity are terms that play host to social consciousness regarding the roles of men and women in society. Gender, in the sense, refers to the roles and relationships, personality traits, behaviors, and values that society ascribes to men and women. These are the known or learned differences between the male population and the female population. The term gender must, however, be differentiated from the term sex; while gender refers to the learned differences existing between men and women, sex refers to the biological differences between men and women.
The modern world is highly gender-sensitive, where the roles of men and women in society are becoming exceedingly difficult to differentiate. Today, society is no longer a patriarchal one, where there is an unequal distribution of power and privilege between males and females.
The criminal justice system refers to a group of bureaus that respond to crime, including police officers, courts, and prisons. The fourteenth amendment of the U.S. Constitution gives the criminal justice system the mandate of ensuring equal protection for all men and women. The clause provides, "no state shall disallow any person within its authority the equal protection of the law".
Therefore, the criminal justice system has the constitutional duty of providing a fair, effective, and representative system that holds the highest respect for the fundamental rights of all men and women. The system is thus required by law to be gender-responsive and should function to define and tackle gender discrepancies that exist in the society so as to prevent gender-based crimes, protect and help the victims and survivors of such crimes (Sally, 2010).
Disparity treatment in the criminal justice system begins at the very first stage of investigations and interrogations. The gender of the suspect plays a critical role in the methods of interrogations. In cases when the suspects are male, the methods that the interrogating officers chose are usually extremely coercive and can border on torture. The officers tend to be more aggressive, firm and are designed to make the suspect tell the truth. Women, on the other hand, receive less coercive interrogation techniques and the interrogation methods are less violent. This preferential treatment goes all the way to the trial, sentencing, and incarceration of the suspect.
Gender and Sentencing
The criminal justice system, however, rarely favors women convicts, and there are darned few examples when women are favored by the organization. For instance, women attract more favorable sentences than the male counterparts for similar offenses. Studies show that women receive milder sentences than their male counterparts for similar offenses. The sentencing is based on jail time and the length of that jail time. With respect to serving jail time, most research studies show that women are sentenced to serve prison time with a smaller probability compared to the male convicts.
For crimes requiring imprisonment, women usually end up being subjected to community service or even house arrest and probation while men usually end up in prison. Similarly, there is a preferential treatment where the length of the sentencing is the issue. Women usually tend to receive shorter sentences than men.
Several theories that try to explain the reasons for this preferential treatment in the criminal justice system have been advanced, but only two are most common. The first theory is the chivalry thesis which fronts cultural beliefs and practices about the roles of men and women as the major influences of preferential treatment in the criminal justice system. The theory posits that cultural stereotypes about both men and women influence sentencing outcomes (Karen & Candace, 2006).
According to the chivalry theory, women are stereotyped as being fickle and childlike and thus are not fully responsible for their actions and consequently their crimes. The theory, therefore, draws women as weak characters who depend on men's protection as the men are usually perceived as individuals who are willing to minimize any pain or suffering from the lives of women. Similar stereotypes take central stage in the criminal justice system which in turn influences the judgment of the court.
The second theory that explains preferential treatment in the sentencing of women deals with focal concerns in society today. The focal concerns theory asserts that preferential treatment for women in sentencing comes as a result of human error expressed in judicial outcomes. The theory posits that, because of time constraints that are available to judges in every case along with other factors, the situation translates to judges receiving incomplete information on defendants and their cases. As a result, this influences judges to generalize some information and make judgments based on personal biasness.
The judges, therefore, commonly make contextual attributions about the defendant's culpability, character, and potential recidivism relying on three main concerns: blameworthiness, dangerousness (this aspect of how much threat the suspect may pose to the society), and practical constraints. When this context is applied during sentencing for female criminals, the general belief is that women are less of a risk to the community when compared to male criminals. Similarly, women are thought not to be entirely at fault for the crimes they commit based on the chivalry theory, thus, the aspect of blameworthiness also plays a role in sentencing (Karen & Janet, 2008). Women are then given milder sentences when this theory of focal concerns is applied.
Another factor that plays a critical role in the sentencing of women concerns the type of crime committed. Selective chivalry theory asserts that those women, who commit crimes that exceed the moral boundaries of society regarding the roles of women, are likely to be given harsher sentences and receive much harsher treatment than the male counterparts who may have committed the same crime. Historically, women are considered to be petty offenders and thus are associated with certain types of crimes that are not manlike in character.
Women, therefore, receive preferential treatment when they commit crimes that can be associated with females and stereotypic of female genders such as drug use, property crimes like check forgery, and even shoplifting. However, women who commit masculine crimes, such as those which involve violence, do not get preferential sentencing. Thus, the type of crimes committed also influences the treatment accorded to women convicts during sentencing (Emerson, Russell, & Lesley, 1995).
History of Women and Justice System
Historically, the criminal justice system was not designed for women as they were considered less dangerous than male offenders. The history of the relationship between the justice system and women has been advanced by classical sociologists, feminists, and criminologists. Traditional criminologists focused on male offending and specifically on crimes, such as street crimes, violent crimes, organized crimes, and white-collar crimes. Thus, women were not considered to be much of a problem to society concerning criminal activities.
The role of women in the criminal justice system was mostly in the form of victims or survivors of crimes committed by men. Criminologists viewed crimes committed by women as crimes committed in self-defense or the defense of the family. Women were, therefore, over-presented as victims or survivors of gender-based crimes, violence, discrimination, and harassment. Historically women were discriminated against by the criminal justice system, they were denied access to justice and prevented from full participation in the criminal justice system.
However, classical theorists studied women offenders and their treatment by the criminal justice system. These theorists carried out research about female offenders and the factors which influenced criminality in women. They studied biological, psychological, social, and economic factors that influenced women's criminality. For instance, Lombroso and Ferrero developed theories that mostly focused on biological factors that caused female criminality; they developed these theories by studying the skulls, brains, and bones of female offenders and prostitutes.
Through this research, they arrived at a conclusion that there were far fewer women criminals than males and that prostitutes had more defects than female reprobates or normal women. Therefore, they assert that women committed less serious crimes because they were low on the evolutionary scale (Lombroso & Ferrero, 2003).
Another theorist who assessed the relationship between women and the criminal justice system is Otto Pollak who stated that crimes perpetrated by women were mostly unreported or concealed. Otto explains this theory by stating that women were more skilled at hiding crimes due to their biology. He asserted that women learned to conceal the ache and distress of their menstruation from men and were also capable of faking interest in sexual intercourse in a manner that men could not.
Similarly, the familial responsibility of women allowed them to conceal crimes, such as sexually violating their children and poisoning their relatives. Therefore, he explains that the reasons why crimes committed by women were unreported are because women used sexuality to instigate crime and then captivate males in the criminal justice system to secure lenient treatment (Otto, 1978).
Other theorists considered the criminal justice system as being particularly harsh towards women. One of these theorists was Heidensohn, who examined social understandings about the feminism affects women's experiences within the criminal justice system. She asserts that women receive harsher treatment when they commit crimes that do not conform to the social expectations of women regarding their feminism. She bases this argument on aspects that explain excessive harshness towards female offenders. The first aspect is the double deviant argument. This argument sees women as having not only broken the law but also to have broken the more fundamental norms, which govern sex-role behavior (Frances, 1985).
This argument asserts that female appearance in the court was not a common picture and thus when they appeared they were dealt with inappropriately. Mostly, the type of sentencing given to women offenders was based on whether she was a good mother or a bad mother. When the woman was perceived as a good mother, she was less likely to end up in prison unlike when she was considered to be a bad mother; she could most likely end up in prison.
The second argument that explains the harshness that women received in courts was the punishment that female offenders received for their deviant sexuality and sex roles. She develops four assertions that attach to this argument.
- Firstly, courts operated a double standard with sexual behavior, only punishing girls for engaging in sexual activities. Historically, sexual activities by girls were considered immoral, and thus they were dealt with more punitively.
- The second assertion is that the court personnel "sexualized" female delinquency, exaggerating that offense in the process.
- Thirdly, wayward girls who did not comply with the conventional female stereotypes were most likely to receive excessive punitive treatment, creating greater chances of being imprisoned.
The history of women and the criminal justice system are thus firmly entrenched in the patriarchal nature of the society that was then (Merry, 2005). Women were closely monitored and protected by their husbands and parents from any trouble, and thus the criminal justice system was exclusively shaped to handle the more aggressive men of the society.
Women, Law, and Effects of Punishment on Women
Over the last decade, the figure of women in the criminal justice system has grown exponentially as more and more women have become victims, survivors, and perpetrators of crime. This growth has been aided by the increased employment of women serving in the criminal justice system. There has been also a prominent augment in the number of women lawbreakers, although this is not reflective of an increase in the criminality levels of women. Women are mostly arrested for petty offenses involving property crimes and other misdemeanors.
Studies show that the number of women arrested for committing violent crimes has continued to drop as few women have been convicted of murder. The increase in the incarceration of women in the criminal justice system can, therefore, be attributed to U.S. policies regarding crime. These policies govern critical areas of the criminal justice system, and they include policies such as the war on drug policies, government policies that prescribe punitive simplistic enforcement responses to complex social problems, and the state as well as federal mandatory sentencing laws (Sandra, 2004).
The federal and state mandatory sentencing minimums have the biggest impact on women. Mandatory minimums do not appropriately serve the purpose of punishment as they result in lengthy sentences for petty offenders who could be subjected to short-term sentences and thereby reducing the effects of punishment. Ideally, the purpose of sentencing is to provide appropriate punishment that should be proportionate to the gravity of the offense.
Mandatory minimums, thus, eliminate judicial discretion in giving a prison term lower than the statutory floor, making the evidence adduced in a particular case and unique to that case and offender, irrelevant. Mandatory minimums result in lengthy sentences for crimes that could be punished with lower sentences. Therefore, the most affected by this change are the women who mostly commit petty offenses subject to mandatory minimums (Cole & Smith, 2007).
The law on bails also affects women in the process of attaining justice under the criminal justice system. This is explained by the fact that women who are accused of less dangerous crimes are required to post bail for them to be released from jail. This usually impedes the presumption of innocence as the rationale behind the introduction of bail was for the protection of the public.
Women who are in the justice system represent a fraction of the society that is most uneducated, unskilled, and poor and as such may not even have the means to raise the amount required for bail. This forces the suspect women to start serving time in jail even before their status is known through the court process. Even though society does not regard women as very dangerous, the requirement of bail applies to all before the criminal justice system. As a result, it raises the question of equal treatment meaning fair treatment for all.
Women suffer adverse consequences when they go through the criminal justice system. Perhaps, their punishment is much worse once they have been released than when they are incarcerated. Most incarcerated women are mothers, and at the point of incarceration, they are separated from their families and children. Usually, incarcerated mothers are viewed in the worst of pictures by society as having failed the test of motherhood of providing care for the child by engaging in dangerous criminal activities. Mothers lose their children to foster homes, and this may be permanent depending on the nature of the crime committed.
The Adoption and Safe Families Act of 1997 (ASFA) authorizes the extinction of parental rights once a child has been in foster care for a period of fifteen months of the past twenty-two months. This short period is meant to allow for quick termination of parental rights permanently and promote speedy adoptions for the children. This requirement works as a severe blow to mothers who have been sentenced to serve a period of fewer than twenty months in prison (Frank 1997).
The situation is further aggravated by the fact that children left behind as a result of imprisoned mothers are vulnerable to suffering significant attachment disorders. They will likely turn to drugs or alcohol, engage in criminal activities, exhibit sexually promiscuous behavior, and show little interest in educational development and achievement.
Another effect of punishment on women is the difficulty in securing employment with a criminal record. This is made worse by the educational provisions which prevent women with drug conviction records from accessing higher education. This is provided for by the Higher Education Act of 1998 which denies eligibility for students convicted of drug offenses. Women with criminal records are also affected by section 115 of the Welfare Reform Act of 1996. It is under the provision for temporary assistance for needy families (TANF) and provides that persons convicted of state or federal felony offenses related to the use or trade of drugs are subject to a lifetime prohibition on receiving cash assistance and food stamps.
The issue of pregnant women in prison is one deserving considerable attention from correction officers, advocates, judges, policymakers, and other stakeholders. The need for the improvement of healthcare provision for pregnant women incarcerated. Prison rules and regulations, harsh and dehumanizing for all were developed for men convicts who were incarcerated for violent crimes. These are the rules that still apply to pregnant women in prison. Needless to say, the health conditions are inadequate to take care of a pregnant woman. The fact of incarceration does not, by any means, withdraw the constitutional right of access to quality health by the citizens of the country (Britton, 2011).
Therefore, women who are pregnant in prisons, just like other women, require high-quality medical care. The failure of prisons to conform to nationally accepted standards for prenatal care results in pitiable health outcomes for children born to imprisoned mothers.
In conclusion, the differences between the treatment accorded to women and men by the justice system are very clear and distinct. Most women are not subject to extreme interrogation techniques that their male counterparts undergo. Similarly, women attract lenient sentencing from judges for crimes that would attract harsher sentences for men convicts.
The types of crimes committed similarly attract differences in the treatment of women and men by the justice system. In prisons, men agitate for their rights more than women and thus receive better treatment due to their aggressive nature, unlike their female counterparts who usually are submissive to the rules that govern them.