Using concrete illustrations, critically discuss the extent to which the jurisprudence and policy relating to offense and penalty are influenced by gender.
Feminist positions began to act upon criminology in the 1970s when authors foremost started disputing some of the male-centred premises that had permeated the jurisprudence up boulder clay that point. Jewkes ( 2004 ) points out that Carol Smart’sWomans, Crime and Criminology( 1977 ) was the first paper to dispute the traditional thoughts that had held sway since the 19th century. This pioneering paper exposed the cultural prejudice of theposition quoand led a figure of other bookmans to construct on and develop the work she had started. The decision of much of this work was that the jurisprudence embodied certain ‘essentialist premises about women’s psychological makeup and biological purpose’ which condemned them to ‘differential intervention within law’ ( Jewkes, 2004: 111 ) . These premises meant that adult females who committed serious offenses were seen to hold breached non merely condemnable Torahs, but besides natural Torahs. As Jewkes ( 2004: 111 ) points out, the attitude has been that ‘such adult females are double aberrant and double damned.’
Feminist criminology is non a individual statement or organic structure of statements seeking to do a conjunct point, but instead a scope of diverse attacks that are concerned with placing the points at which gender and the condemnable jurisprudence convergence, and to analyze the effects that such interactions have on how the jurisprudence operates. Initially, much attending in the field was paid to the issue of male force against adult females but as the field has matured, the country under scrutiny has expanded to cover a diverse scope of issues, looking at both offenses committed by or against adult females, but besides issues such as the media portraiture of female wrongdoers and jury intervention of female suspects. Some of the cardinal inquiries posed by the field include whether adult females are treated more harshly or more laxly than work forces when on test for serious offenses ; whether adult females are inactive ‘victims of circumstance’ in condemnable happenings, or instigators and provokers of offense ; and why the media treats some serious female wrongdoers with smear. It has been observed by Helena Kennedy QC, quoted in Jewkes ( 2004: 112 ) that adult females who conform to the female stereotype of the good married woman and female parent are more likely to have judicial mildness and receive lighter sentences than adult females who challenge or renounce such stereotypes. Kennedy besides noted that playing the function of the adult female victim, either to fortunes or to violence or coerce from work forces, will besides be given to ensue in a more indulgent sentence. What this means is that adult females will have both more lenient, and harsher interventions from the condemnable justness system, depending on which female stereotypes they fit into.
It has besides been noted that adult females who commit really serious offenses receive more media attending and that such attending is more digesting than for male wrongdoers. It appears as if female wrongdoers are more compelling and tickling to the public head. Examples of this scope from Lizzie Border who was acquitted of slaying her male parent and stepmother in the USA in 1893, to Maxine Carr who was accused of corrupting the class of justness in the UK in 2003. [ 1 ] Another illustration of the condemnable jurisprudence being influenced by gender considerations is in the difference in intervention between heterosexual and homosexual Acts of the Apostless.
This essay will look at three illustrations of countries where gender plays a important function in the manner the condemnable justness system operates. These three countries are: sexual offenses and in peculiar colza ; homosexualism and adult females killing their ain babes. These three countries raise a figure of different issues in how gender affects criminological operations and hence stand for a good cross subdivision of the field of criminology for reappraisal. This paper will travel on to reason that there are a figure of topographic points where the operation of the condemnable jurisprudence could be improved if gender stereotypes were abandoned and makes concrete suggestions of where such betterments could be made and how.
Following a Home Office reappraisal of sexual offenses in 2000 entitled ‘Setting the Boundaries’ , the authorities sought to amend and rationalize sexual offenses. This resulted in the transition through Parliament of the Sexual Offences Act 2003 which trades with colza ( subdivision 1 ) , assault by incursion ( subdivision 2 ) , sexual assault ( subdivision 3 ) and doing a individual to prosecute in sexual activity without consent ( subdivision 4 ) . The purpose of the new jurisprudence was to modernize an country that was seen as ‘archaic, incoherent and discriminatory’ so that it would better reflect ‘changes in society and societal attitudes’ ( Temkin & A ; Ashworth, 2004 ) . However, while the definitions of the relevant offenses have been modernised, the methods of prosecuting sexual offenses has non been altered and many issues that victims of sexual offenses have raised over the old ages have non been addressed.
Statistically, colza strong beliefs are highly low. In big portion, this has been due to an highly low coverage rate, although this figure has risen over the last 25 old ages ( Withey, 2007 ) . In one survey of 1,007 adult females in seven metropoliss in England, 25 per cent stated that they had experienced colza or attempted colza at least one time in their life ( Painter, 1991 ) . The British Crime Survey reports that 61,000 adult females were raped in England in Wales in 1999 and estimates that 754,000 adult females in England and Wales have been raped at least one time since they turned 16. However, the figure of reported colzas in 2002 harmonizing to the Home Office ( Myhill & A ; Allen, 2002 ) was merely 11,766, which resulted in 655 strong beliefs, stand foring a strong belief rate of merely 5.6 % . This strong belief rate is terribly low, particularly when one takes into history the fact that possibly merely one in six colzas is being reported in the first topographic point. Similar tendencies can be expected from other sexual offenses ( Withey, 2007 ) . Attempts to undertake this job have centred on diminishing repetition offenses, an issue that is dealt with under subdivisions 104-113 of the Sexual Offences Act 2003, and bettering the strong belief rate by acquiring more guilty supplications, and come oning more instances to test. However, it is clear that something must be done to increase the degree of coverage by victims.
Much research has been conducted on the inquiry of why adult females do non describe colza ( Withey, 2007 ) . One ground identified is the fright of being labelled a false accuser. The women’s involvement group, “Women Against Rape” found that 79 per cent of adult females would non describe a colza because of their fright of an unhelpful or unsympathetic attitude of the constabulary, while 31 per cent said they would be excessively traumatised to confront a constabulary question ( Temkin, 2002 ) .
Another ground cited is the perceptual experience among adult females that it is non rape if it is committed by their hubby. In one study it was estimated that 14 per cent of the adult females questioned had been raped by their hubby ( Withey, 2007 ) . In a similar study of 60 adult females who had been raped by a hubby, fellow, household member or individual in a place of authorization, none had come frontward to describe the colza. In another study of 50 adult females raped by an familiarity or workmate, merely 2 had reported it ( Withey, 2007 ) . Other grounds for neglecting to describe include shame and humiliation of the victim, self-blame, a desire to maintain the incident private, and a fright of revenge ( Temkin, 2002 ) .
Some concrete stairss have been taken to turn to the issue. Sexual Assault Referral Centres have late been introduced and there are now 14 such Centres in England and Wales. These are topographic points where victims of sexual assaults can travel to have medical attention, reding and advice from the constabulary. They can besides collaborate with constabulary in an probe. It is hoped that such Centres will enable more victims to come frontward and describe a colza that they have experienced. Another measure that has been taken, under subdivision 83 of the Sexual Offences Act 2003, has been the debut of a presentment demand whereby those having a cautiousness for a colza charge must advise the constabulary within three yearss, of their name, any assumed names, day of the month of birth and National Insurance Number. Failure to supply the information is an offense. The aim of the process is to let constabularies to continue with probes, regulation out or govern in known wrongdoers, and gather grounds every bit fleetly as possible. This it is hoped will help to a grade with some of the troubles involved in the familiarity and privateness environing the committee of most colzas, and the troubles of garnering grounds. Because some colzas are merely reported old ages after they occur, it can be about impossible to garner forensic grounds. To do the best usage of the technological methods and promotions that are available to patrol, the Home Office Forensic Science Team now works with the constabulary to offer counsel on instance choice, victim attention and evidence-gathering ( Withey, 2007 ) . Fact-finding powers have besides been increased under subdivisions 9 and 10 of the 2003 Act.
One of the jobs that has proven hard to cover with has been the inclination of victims to retreat their ailment before it gets to test. This has frequently been put down to the fact-finding procedure and the actions of the constabulary. Withey ( 2007 ) refers to a survey of the Scots Office Central Research Unit which showed that out of 40 colza victims, the bulk were disquieted or unsated with the intervention they had received from CID and particularly the interactions they had had with female constabulary officers. They reported that they felt that the constabulary had no involvement other than procuring a strong belief and treated the victims simply as a agency to accomplishing this terminal. The same study showed that in many instances, the constabulary did non believe the whiners and made this fact known. 19 per cent of the whiners had been told that their narrative was non believable and most whiners had been forced to reiterate their narrative a figure of times. The decision of this study was that ‘it did non go on really frequently that whiners of their ain agreement and without encouragement withdrew their complaints’ ( Withey, 2007 ) . It is evident so that constabularies have been playing a important function in the underreporting of colza, as they act as a hindrance to victims who fear holding to get the better of the uncertainty and insensitiveness of the constabulary. Once colzas have been reported, the constabulary continue to move as a hindrance and look to be the cause, and in some instances encourage, victims to retreat their ailments. While stairss have been taken to better the experiences of victims with the constabulary the issue remains a serious one.
Withey ( 2007 ) points besides to the literature on colza myths and misconceptions. She states that there are profoundly imbedded stereotyped premises of how colza victims act before and after the event. The common image of colza is that it occurs out-of-doorss, at dark, and involves force and physical hurt. There is besides a widely held belief that sex procured through coercion is non colza. The statistics seem to back up this averment with the strong belief rate for colzas that involve hurt to the victim being significantly higher than for those that involve no physical hurt to the victim.
The facts nevertheless, reveal that in the huge bulk of colzas, the victim knows the culprit. Most colzas occur indoors, and it is more common to affect coercion than force in the procurance of the intercourse. Withey ( 2007 ) besides states that there are widespread misconceptions on the consent of the victim, or the misguided belief in consent, by the culprit. There is a relentless thought that certain types of behavior such as dressing in a certain manner or prosecuting in certain activities are ‘asking for sex’ or that they are taking on a high hazard of taking work forces to erroneously believe that they are ‘asking for sex’ . Again, the facts show that most victims know and trust the culprit of the colza and have no ground to believe that their action will ask for aggression. In other instances, the finding factor has been identified as the specific picks or determinations of the raper, and non the behavior of the victim. There are besides existent concerns about the prolongation of myths that adult females lead work forces on, fantasise about colza and say ‘no’ when they mean ‘yes’ .
Myths about the behavior of the victim during and after a colza suggest that all victims would react in the same manner, that they would defy violently and describe the offense instantly. Harmonizing to the facts, different adult females behave in really different ways, many offer no physical opposition and see such as futile, others freeze out of fright or daze, while others do defy violently. Many adult females besides delay describing the offense for no evident ground other than injuries, daze and emphasis ( Withey, 2007 ) . Training of those involved in the prosecution of colzas, every bit good as alterations in the jurisprudence have had some impact in cut downing the prevalence of such myths among the constabulary and prosecuting officers, nevertheless, this does non turn to the being of such beliefs among other members of the condemnable justness system, including Judgess, and particularly jurymans.
There have been a figure of amendments made to the substantial jurisprudence on sexual offenses and colza. There have besides been some of import alterations in the Torahs of grounds and the operation of tests. More preparation has been given to constabularies and research workers and attempts have besides been made to chase away some of the myths that surround sexual offenses such as colza. Measures have besides been introduced to promote more colza victims, and victims of sexual offenses to come frontward and describe offenses. Given all of these alterations in the jurisprudence nevertheless, the coverage of colza, and the strong belief rates for colzas and other sexual offenses have merely increased marginally.
While many of these alterations have been made rather late and it is still necessary to let more clip to see the full consequence that they will hold, many believe that the true cause of the low strong belief rate for sexual offenses is the entrenched myths about the behavior and gender of adult females and victims of colza. As Withey ( 2007 ) points out, ‘Is it realistic to believe that preparation and adept aid entirely will chase away entrenched colza myths? ’ Such myths are portion of our society and non merely portion of the condemnable justness system. The myths are complex and deep rooted. Police and prosecuting officers may doubt the veracity of victims who have behaved in provocative ways or who appear to hold invited hazard upon themselves. Jurors may anticipate victims to defy colza violently and describe it instantly. The victims themselves may doubt their ain actions, their deficiency of physical opposition and their ain emotional response to the colza, every bit good as the fact that they knew and trusted their aggressor. All of these considerations are of import elements of the issue and will hold to be dealt with more concertedly if the low strong belief rates, and low coverage rates of colza are to be rectified.
To undertake this issue, a holistic and many-sided attack is required. The chief push of this attack should be to alter the positions and attitudes of society as a whole to sexual offenses, and in peculiar to ravish. Given the intrenchment of the attitudes concerned, and the graduated table and catholicity of the issue, the authorities should fund and establish a run to advertise the issue of colza, and convey consciousness of the misconceptions that exist. In 2006 the authorities initiated a run alarming work forces of the importance of corroborating that the adult female consents to intercourse. This run was ridiculed in the Daily Mail. This shows the attitudes that have to be overcome and the instruction procedure that needs to be implemented. As Withey ( 2007 ) points out, such a run could be targeted at societal locales frequented by adolescents and immature people. Withey ( 2007 ) besides points to the demand to develop more long-run schemes aimed at changing deep-rooted attitudes. This would affect instruction in schools on some of the issues involved and on the common countries where a adult male and a adult female might see an brush otherwise. Attention should be placed in sexual instruction categories on the moral and societal issues involved in sexual activity, every bit good as merely the biological and medical. By seeking to change deep-rooted stereotyped thoughts and myths in a co-ordinated and long term mode, the authorities may win in increasing the strong belief and coverage rates for colza and sexual offenses which are presently among the lowest degrees in Europe ( Withey, 2007 ) .
The 2nd country to be examined the intervention of homosexualism under the condemnable jurisprudence. As Selfe and Burke ( 2001: 1 ) have pointed out, the condemnable jurisprudence has ever sought to modulate and put bounds on homosexual activity. While such ordinance may be far less controversial today than it has been in the yesteryear, it is still of import to look at how and why this activity is regulated by the condemnable jurisprudence. There has ever been a desire to modulate extra-marital sex in western, Judeo-christian societies. Homosexuality nevertheless, has received ‘the strongest and most conjunct socio-legal pressures’ of all non-traditional sexual patterns ( Selfe & A ; Burke, 2001: 2 ) . While criminal conversation and the usage of contraceptive method besides breach traditional sexual morality, they have received a far less conjunct ordinance under jurisprudence. Chemical reactions and attitudes towards homosexualism are extremely culturally specific, and in traditional Western societies, homosexualism has been sacredly condemned as a breach of the indispensable intent of sex, reproduction. The jurisprudence hence sought to outlaw homosexualism on the evidences that it was unnatural and failed to foster the purpose of reproduction or the continuance of the race.
In England, both before and after sodomy became a statutory offense in 1533, it was the physical act of sodomy that was targeted, instead than homophiles per Se. As Weeks ( 1989: 99 ) quoted in Selfe and Burke ( 2001:3 ) points out, “All Acts of the Apostless of sodomy were every bit condemned as being ‘against nature’ , whether between a adult male and adult female, adult male and animal, or adult male and adult male. The punishment for the ‘abominable frailty of buggery’ was decease, and the decease punishment continued on the statue books… until 1861” . However, while the jurisprudence was directed at the act regardless of whether it was homosexual or non, the pattern was to utilize the proviso to prosecute homophiles who engaged in buggery. From the beginning hence, there was a ‘firm nexus developing between the offense of sodomy and the control of male homosexuals’ ( Selfe and Burke, 2001: 3 ) .
Selfe and Burke ( 2001 ) have argued that homophobia has persisted in modern jurisprudence. Homophobia is defined either as ‘an intense, irrational fright of homosexuality’ or the more modern significance of an ‘intolerance or disfavor of homosexualism or homosexuals.’ While it may be thought that there has been a echt alteration in public attitudes in society towards homosexualism with a ensuing lessening in homophobia, Selfe and Burke ( 2001 ) , citing West ( 1992: 14 ) , show, “disapproval, both open and covert, remains permeant and reveals itself in many signifiers, non least in the manner Torahs and societal criterions are applied otherwise to homosexual and heterosexual behaviour.” The disfavor of homophiles, and the different criterions of intervention under the jurisprudence show a relationship between societal norms and legal responses that has been at work against homophiles.
The correlativity of societal and legal attitudes is worrying as it creates the potency for prejudiced jurisprudence in breach of the European Convention on Human Rights ( ECHR ) and the Human Rights Act 1998. Social positions on homosexualism are highly polarized with 64 per cent of work forces and adult females in the UK coverage in the Independent in 1994 that they believed sex between two work forces is ever or largely incorrect. This is about every bit utmost as the US response to a similar study where the corresponding figure was 75 per cent. There has been a important thrust in recent old ages to take prejudiced inclinations in the jurisprudence, largely as a consequence of the ECHR. This has culminated in the legalization of same-sex civil brotherhoods and an reading rule within the tribunals to construe all statute law mentioning to conserve and married woman to include same-sex twosomes who live as hubby and married woman. [ 2 ]
Harmonizing to Selfe and Burke ( 2001 ) the hostile attitude of the jurisprudence towards homosexualism is a once more a consequence of a failure of homophiles to suit into the standard stereotypes of the healthy adult male. Quoting West ( 1992 ) they province, “Male homophiles are regarded as kid molesters, treasonists, cross-dressers, and effeminates… Doubtless some are, but that is non to state they are in any manner typical or representative.” The effects of pigeonholing male behaviors have the consequence of penalising or penalizing those who deviate from it by going homosexual, in the same manner that divergence from the traditional female function consequences in harsher intervention for female culprits of serious offenses.
A similar consciousness raising run that was advised to change prepossessions and myths about colza victims is necessary to change perceptual experiences and stereotypes of male behavior. If it is unacceptable to handle females less favorably under the condemnable jurisprudence merely because they fail to populate up to outlooks placed on females by society, so it must be every bit unacceptable to handle homosexual males less favorably merely because they fail to populate up to matching social stereotypes placed on males. The intent of the condemnable jurisprudence is non uphold social attitudes of gender functions and should non hence be allowed to make so by rough intervention of those who deviate from such gender functions.
The concluding country to be examined in this paper is the infanticide by female parents of their ain babes. The intent here is non to analyze the criminalism of such an act which falls obviously under slaying. However, Huckerby ( 2003 ) has highlighted once more the grade to which gender stereotypes act upon the operation of the condemnable jurisprudence. In this instance, the country under scrutiny is the difference in the stereotypes that exist in society for upper or in-between category, white female parents, and hapless black female parents in the United States. Huckerby looks at two instance surveies which highlight these several stereotypes in pattern.
The first is the instance, which occurred in Minnesota in 1998, of Khoua Her, a 24 twelvemonth old Hmong immigrant, populating in the United States for a figure of old ages, who was estranged from her hubby. She strangled her six kids and attempted self-destruction before naming the constabulary to describe the incident. Under the footings of a supplication deal she plead guilty to six counts of knowing second-degree slaying and was sentenced to 50 old ages imprisonment.
The 2nd instance occurred in Texas in 2001 and concerned Andrea Yates, who was a 36 twelvemonth old, married Christian housewife and female parent. She drowned her five kids in the bath bath and so called the constabulary to describe the incident. Yates plead non guilty by ground of insanity to two counts of capital slaying. Her attorneies presented grounds that Yates had been enduring from depression. She was found competent and guilty of the two counts of capital slaying. However, her sentence was commuted to life imprisonment bespeaking a belief that a grade of lenience was deserved. Huckerby proceeds to place that the while both adult females received similar sentences, they were charged with different offenses, their attorneies raised different defense mechanisms and the narration of their test therefore tells a different legal narrative. This was because each adult female had breached a different stereotype. Her had breached the stereotype of the hapless, black individual female parent, and this narrative required one legal narration, while Yates had breached the stereotype of the in-between category, white, Christian, married female parent which required a wholly different legal narration. This is merely one more illustration of how the condemnable justness system allows gender stereotypes to impact its operation, and tries culprits of condemnable Acts of the Apostless otherwise, depending on whether or non they have breached a traditionally accepted gender stereotype. The concluding instance surveies, of Her and Yates, shows that even for the same offense, both committed by female parents against their ain kids, gender based stereotypes are so developed that they will change depending on the age, ethnicity, societal position and wealth of the culprit and will therefore handle the culprit otherwise harmonizing to which precise stereotype she is deemed to suit into and which she has breached.
In decision hence, this essay has examined the manners in which gender stereotypes are allowed to play a function in the condemnable justness system. The essay has traced the development of a women’s rightist or gender based survey of condemnable jurisprudence and shown how the scope of issues examined in this field has expanded over the decennaries since it foremost became an recognized country of survey. It highlighted the different intervention that culprits of serious offenses can anticipate from both the media, and the tribunals, depending on their gender. It besides showed the importance and power that gender based stereotypes play in condemnable jurisprudence.
The paper so looked at three countries of survey in greater item, sexual assault and colza, homosexualism, and killing of kids by female parents. It went on to demo that in all three countries, stereotypes are deep rooted and ingrained in both the populace and legal imaginativeness. In colza, there are deep rooted stereotypes and myths environing both the mode in which colzas are committed, and the reactions that adult females will hold towards such offenses. In pattern, both the mode of colzas, and the reactions of adult females victims are really different from the recognized myths and this plays a important function in the low strong belief rate and describing rate of colza by adult females. Victims of colza are merely scared to come frontward, and constabularies, prosecuting officers and juries all find it hard to believe narratives of colza that are at discrepancy from their expected narrative. Sing homosexualism, although recent alterations in jurisprudence have removed much favoritism from the jurisprudence, traditionally the jurisprudence has treated homosexualism less favorably than heterosexualism. This has been linked to the failure of homosexual work forces to conform to the stereotypes that exist in society for healthy, normal work forces. In the concluding illustration, the difference in intervention of two adult females who killed their kids highlighted the different stereotypes that exist for female parents in different societal categories. The intervention of the female parent who kills her kids, while ensuing in drawn-out sentences, will depend on the stereotype they fit into and the grade to which they have deviated from that stereotype.
This essay has besides looked at the ways in which the operation of the jurisprudence could go less gender dependant if stereotypes and myths about gender specific functions were broken down by instruction and authorities funded promotion runs. However, given the intrenchment of gender in organizing attitudes in our society, it appears as if the remotion of the issue of gender in the condemnable justness system is still a long manner off.
Temkin & A ; Ashworth ( 2004 )The Sexual Offences Act 2003: ( 1 ) Rape, Sexual Assaults and the Problems of Consent,Criminal Law Review, 2004 pp 328-346
Jewkes ( 2004 )Media and Crime,Chapter 5,
Painter ( 1991 )Wife Rape, Marriage and the Law: Survey Report, Key Findings and Recommendations,( Manchester University, Department of Social Policy and Social Work: 1991 )
Myhill and Allen ( 2002 )Rape and Sexual Assault of Women: The Extent and Nature of the Problem: Findingss from the British Crime Survey 2000,Home Office Research Study 237
Temkin ( 2002 ) ,Rape and the Legal Process,( OUP: Oxford )
Whitey ( 2007 ) ,Female Rape – an Ongoing Concern: Schemes for Bettering Reporting and Conviction Levels,Journal of Criminal Law
Selfe & A ; Burke ( 2001 )Homosexuality: the socio-legal context,in Positions on sex, offense and society, 2neodymiumed. , pp 1-28 ( Cavendish: London )
Weeks ( 1989 )Sexual activity, Politics and Society,( Longman: London )
West ( 1992 )Homophobia: covert and open,in Mezey and King,Male victims of sexual assault,( Oxford: OUP )
Huckerby ( 2003 )Womans who kill their kids: Case survey and decisions refering the differences in the autumn from maternal grace by Khoua and Andrea Yates,Duke Journal of Gender Law and Policy, 2003, Vol. 10 pp 149-172