With a focus on gender or race, discuss whether the criminal justice system is biased.

by charismer (student)

Society expects the criminal justice system to provide justice for everyone by protecting the innocent, to punish and convict the guilty, and to rehabilitate them in an attempt to stop them reoffending. It is supposed to give fair justice for everyone, regardless of gender, but much is written that suggests that the criminal justice system is gender-biased. Gender bias was not formed by the justice system, but it does reflect the fundamental conditions and attitudes of society. The cost of gender bias to society, the criminal justice system, and to the people within it is enormous.

To discuss if the criminal justice system is gender-biased, an understanding should be reached regarding what is meant by the term `gender`. The word gender can be difficult to define, and also how it differs from the term `sex`. Whilst the term `sex` refers to the psychological and biological physiognomies that describe men and women, the term `gender` (The Free online Dictionary) refers to the roles that society considers to be appropriate for men and women, such as activities and behaviours. Categories of gender are `masculine` and `feminine’ while sex categories are `male` and `female`. Some authors believe that the increase of females offending has increased due to the `masculinization` of women’s behaviour during the Women’s Liberation Movement in the 1970s, and is responsible for the increasing numbers of women committing crimes.(Heidensohn, 1989; Adler, 1975). Aspects of sex do not vary between human societies, but aspects of gender may be very different (Bryant and Trueman, 2000). Sex-stereotypes are said to be central to gender, which can be defined as the behaviours, attitudes, roles and beliefs that are passed from generation to generation (Weinrich,

1980). Bias is defined as an inclination or preference that inhibits unbiased judgement.

There are two views concerning whether men and women are treated differently by the courts and the police. The first is the chivalry hypothesis, which is that women are treated with more respect, sympathy and courtesy. It is stated in the chivalry theory that more leniency is given to women than to men by the police, courts and the criminal justice system in general. It is said that male chivalry means that a woman is less likely to be charged by the police, and that the courts give lesser sentences to women than men, even if they have committed the same crime as male counterparts. Women who are sent to prison often receive shorter sentences than men which does imply that women are treated more leniently (Heidensohn, 2002). Some authors state that the chivalry hypothesis becomes not so relevant if the crimes committed are the same, and sentencing varies very little between the sexes. It can be argued that the chivalry hypothesis only works if the offender fits what is considered to be the female stereotypical, gendered role.

The second view of different gender-treatment is when a woman does not fit the stereotype of what are female norms, this `double jeopardy’ theory becomes relevant, which results in much harsher sentencing (Carlen, 1985). It can be argued that in some cases that women are treated more severely by the criminal justice system because women are guilty of been doubly deviant; by committing a crime they have not behaved in a way that is regarded to be a socially normal way for their gender to behave. It is also written that females who commit aggressive crimes are often treated more severely than men, who are aggressive because their behaviour is different from what is regarded as normal female behaviour (Paul and Baenninger, 1991; Gelsthorpe, 2003).

Campbell (1993) states that violent women must rival men or be mentally ill, because it is not how nice girls should behave according to Batchelor (2001). It could be seen that in some areas the gender bias within the criminal justice system that gender rivalry with the men has been the predominant force. Police officers and judges were interviewed by Hedderman and Gelsthorpe (1997) and were asked about the ways in which they made decisions. It is clear that women were given more leniencies if they have children, as their offences are treated as “need more than greed”, for ...

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There is evidence that the possible gender bias in the criminal justice system begins as soon as a woman is taken to the police station. Fawcett (2006) comments that women feel that police stations are hostile places, partly because of the behaviour and sexist language within the police service. Women are in general less inclined to use their right to have legal representation, but this may be not only because they are often charged with less serious crimes, or it could be because they feel overwhelmed and intimidated in the male-dominated police station. Only 20% of police officers are women, and only 18% of forensic officers are women. It is unclear whether police officers are trained to deal with women who have been victims of abuse, particularly when that is pertinent to the charges that have been brought against them.

The Home Office states that women who are given prison sentences are given shorter sentences than their male counterparts. This implies that women are treated more leniently by the criminal justice system. The individual's history of offending and the nature of the offence are taken into account, and according to the Home Office, both the higher rate of

cautions issued to women, and the lower rate of custodial sentences, reflect that women are less likely to commit serious offences and that past criminal records are also taken into account. Offences that are committed by females tend to be less serious than those committed by men, and fewer women have previous criminal records. This indicates that, according to Trueman and Bryant (2003), there is not any sympathetic bias towards women. 27% of the women who are in prison are first-time offenders, which is more than twice the figure for men. This suggests that men offending for the first time are treated more leniently than women. 63% of women are serving custodial prison sentences for non-violent crimes, in contrast to 45% of men in prison. This suggests that women are sent to prison for far less serious crimes than men. According to the 2001 census, women represented 51.3% of the population of England and Wales, but only 6.1% of the prison population were women. It states that more women are likely to be given community sentences, or to be discharged, and that they are much less likely to be given a custodial sentence than men (Home Office, 2003). Only 8% of the total amount of people sentenced to a custodial prison sentence in 2001 was women. In the last ten years there has been an increase in the female prison population by 60% compared to an increase of 28% for men. The rise is explained by an increase in the severity of the sentences given. It is possible that the introduction in 1997 of The Mandatory and Minimum Sentencing Act put restrictions on judges from using their own discretion when passing sentences.

It is believed that the prison system in the United Kingdom was designed for men by men (Corston, 2007). Gender issues not only cause problems for women but also for the trans-sexual prisoners. New prison guidelines in 2006 were introduced to reform aspects of the prison system in order to reduce gender bias towards trans-sexual individuals. Sir David

Ramsbotham, prison inspector in 2000, stated that trans-sexual prisoners were at risk of serious health problems due to the bias against them that they had been denied treatment, and he stated that they should be given the same treatment as everyone else. As fewer women go to prison than men, there is a male-dominated prison system. Due to this, there is discrimination against women in the prison system. There are fourteen women’s prisons in England, are there are none in Wales (Prison Reform Trust, 2010). This suggests that for women to be sent to a women’s prison it is probable that they may be incarcerated a long distance away from their families, causing isolation and emotional stress (Women in Prison, 2006). A woman is imprisoned on average 57 miles away from their committal address, and in 2007 over 800 women was held more than 100 miles away. This also suggests that women are often imprisoned in a higher grade prison than they need to be in. Due to the fact that there are fewer women’s prisons than men’s prisons, there are far fewer opportunities such as training or education (Hayes, 2007). Over the past ten years the media has focused on many controversial problems within women prisons with television documentaries such as `Girls behind bars`, 2011. The newspapers have used headlines such as `Women burn, strangle and stab themselves in jail hell` (Bright, 2004). In the documentaries, any of the issues raised were indirectly a result of gender bias and the effect that it can have on the women inmates within the criminal justice system. Much of the emphasis of the programmes was about the mental illness that is caused by the lack of suitable prisons and facilities. This in turn often leads to self-harm, drug abuse and suicide.

There is evidence that suggests that gender bias also exists in the criminal justice system against women who are victims of rape. It is believed that in rape trials it is the female rape victim who is made to feel that she is on trial more than the male suspect (Walklate, 1989).

Baroness Stern was commissioned by the Government to do an independent report into the on-going concerns in the amount of rape cases that that went to court and resulted in a conviction. In the report Stern suggested that the (estimated) 14% of reported rapes that result in a conviction for rape or sexual assault was not low compared with other crimes. Of the rape cases that go to court, 58% result in a conviction. Stern reported that the figure would not improve under the present legal system (Williams, 2010). The Stern report (2011) suggested that improved care of the victim would improve the rates of conviction, as fewer victims and witnesses would withdraw from the process, which would improve the possibility of a conviction. In 2005, only 6.5% of rapes that were reported to the police and taken to court resulted in a conviction, compared to 35% of other criminal cases.

In the United States of America (USA) the criminal justice system discriminates against men; one point that is argued is that if a man commits a murder in the USA it is more than twenty times more likely that he will be given the death penalty. Whereas, if a woman murders a man, she is unlikely to be sentenced to death, however if she murders a child or another woman, she runs a higher risk of receiving a death sentence. Markedly, murdering a man is not significant enough to merit the death penalty (Farrell, 1993). According to Farrell, men do not speak up enough, publicize, or organise appeals, so that that biases against women are removed, and the biases against men remain.

Information gathered shows that there is gender bias within the workforce of the criminal justice system. In 2008, only 24% of the police officers in England and Wales were women. Only 12% of women police officers had reached the position of Chief Inspector, compared to 27% who held the position of Constable. In

2008, there were only 29 females who were members of the Chief Police Officers Association, out of 209 total members. A 1993 survey showed that nearly all the police women who took part in the survey had received some form of sexual harassment from fellow male officers. There were also reports that 3 out of 10 had been subjected to unwanted touching and to offensive insults. 66.5% of barristers are men, compared to 33.5% who are women. A staggering 91% of Queen's Counsel are men, compared to 9% who are women. A view could be taken that with gender bias amongst the employment ranks of the justice system, it is not surprising that there is gender bias within the criminal justice process of criminal prosecution.

There are conflicting arguments whether women suffer or benefit from bias during the sentencing for crimes. There is enough evidence to conclude that there is gender bias in the criminal justice system. There should be equal justice for all, yet the criminal justice system is failing women miserably. Women are at a disadvantage as offenders, suspects, defendants, and as employees. The system is failing female victims of violent crimes due to a lack of supportive services. Far too many women are being imprisoned for non-violent crimes. Women are under-represented as employees within the system, principally amongst the senior police levels, the judiciary, CPS, Queens Counsel and within law firms. The criminal justice system and the Government need to address the discrimination that exists against women, and they need to put the issue of gender as central to the criminal justice system. Everyone has a gender or sex, and should be given the right not to be discriminated against. It is a human right to liberty, security, justice, and to not be given punishment without law. It is a human right to a fair trial (Human Rights Act, 2000). As certain that night will follow day, people will commit crimes, and the reactions to the crimes and the way in which gender

differences are approached in the criminal justice system, for the foreseeable future, will stay the same, coloured by their gender.

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