You are currently viewing Gender Blind Justice: Should Women Be Treated Differently To Men?

There has beenn much debate as to whether women should or should not be treated differently to men in the Criminal Justice System (CJS) or whether the CJS should be gender blind. Baroness Corstons’, (2007) report argued women, especially those who are vulnerable and at risk are being treated disproportionately through the CJS. “Women have been marginalised within a system largely designed by men for men” (Corston, 2007: p2). Hedderman and Hough, (1994) argued research findings suggested there was no justification for this claim and that in fact, women were dealt with more leniently than men, this was echoed in Ahola, Christianson and Hellstrom, (2009) report on women, their gender and attractiveness. In 2017 the number of prosecutions of male defendants was 74% compared to females; 26%. However, in the same year, 88% of female defendants were convicted compared to 86 percent of males (Ministry of Justice, 2018). As of May 2019, males are still the highest perpetrators of crime, dominating violent and serious crime offences and are the majority of the prison population – 95 percent (78.71 thousand) compared to 5 percent (3.83 thousand) of the female prison population.

The three categories of vulnerabilities in women according to Corston, (2007) are firstly, domestic circumstances and problems including childcare, domestic violence and issues raising children alone. Secondly, socio-economic factors including isolation, poverty, unemployment, prostitution, and community disengagement, and thirdly, personal circumstances such as low self-esteem, mental ill health, substance abuse, self-harm and eating disorders. So, what differentiates these factors from men? And how do they relate to crimes committed? Women predominantly commit acquisitive crime motivated by their vulnerability factors as outlined above such as stealing food and nappies for their children, stealing to fund addiction, and engaging in prostitution or criminality in some instances under patriarchal control of a partner compounding their need for crime having no access to money. The biological differences between men and women have different consequences both social and personal (Corston, 2007) including the violation of women’s’ experience on strip-search in prisons, particularly during menstruation and the invasiveness of searches which exacerbate the stress some women may experience for example, who have suffered sexual abuse and violent crime.

The effects of women serving a custodial sentence hugely impacts their children, extended family who take care of them and the compounding grief children feel at the loss of their parent and stigma they face from family and friends having a mum in prison (Beresford, 2018).  Corston’s report was reviewed post-decade in 2017 by Women in Prison (WIP), (2017) outlining the improvements made of the forty-three recommendations made by Corston to improve facilities and strategies for women going through the CJS.

These included better access to housing and post-prison support, lenient sentencing for women with children and those suffering depression, alternative therapies to imprisonment in consideration of the impact of their children and a history of trauma and abuse. The impact of Corston’s (2007) report will be discussed further on in this article. In contrast, we’ll now look at Ahola, Christianson and Hellstrom, (2009) report which argues women are in fact treated leniently through the CJS.

What is beautiful is good”. Ahola et al argued their research revealed women are treated more leniently through the CJS based on factors defining judge and jury perception of femininity and beauty. The more attractive a woman was, the more leniently toward harsh sentencing, complete acquittal of crime in some instances and even the narrative skewed perception that the defendant was in fact the victim. Interviews were also conducted with judges who admittedly revealed they leaned toward less harsh sentencing based on perception and visual representation of the defendant, viewing the defendant as their mother, sister or daughter. Burnett and Badzinski, (2005) research discovered that jurors are affected by judges’ verbal and non-verbal cues including facial expressions of irritability and negativity and, closed and leading questions from the judge ultimately impacted the jurors’ perception and subsequent sentencing. This bias has echoed in research as far back as 1928; communication between judge and jury, coercive effect of inquiry (H., 1928) where women were treated more favourably than men based on how they presented (attractiveness, class, distinction, attire, facial expressions such as smiling and even age).

As a result of Corston’s report, WIP revealed through the ten-year anniversary review of the report that some issues had been resolved such as gender specific prison care including addressing hygiene and non-invasive body scans. Strip searching ended in 2009 with calls to facilitate searches that are intelligence-led. Some community women centres have become available although they are viewed as additional prisons instead of therapeutic centres for rehabilitation. One-stop-shops to assist with guidance and advice have been a successful implementation post-prison. External agency joint working to assist women to assimilate into society and guided prevention for vulnerable women had not yet been established successfully as of 2017, neither have seven of the pathways recommended such assistance with finding accommodation, child and family liaison, consideration of probable effect on children, education training and employment and attitudes towards women in prison.

Women’s deaths in prison had not reduced however, neither had a significant reduction of women in prison been recorded, currently fewer by three hundred since 2011 (Clark, 2019). Further, the core theme recommendation of reducing custody for women (except those women who pose significant risk) had also not been implemented. WIP call for further investment to implement the rest of Coston’s (2007) recommendations citing that the CJS needs reviewing to change the current gender-neutral theme. Of the nine pathways recommended by Corston (2007) for women, two have been given consideration with services introduced to assist women who have suffered sexual abuse and those women as sex workers (WIP, 2017).

Evidence suggests that whilst there have been significant improvements to address gender specific needs within the CJS as outlined above, such as better prison conditions, acknowledgement of the effects of children and the wider community, further investment needs to be made to meet the needs of women suffering mental health and complex post-traumatic stress disorders and consideration of omitting custody for low-level crime such as acquisitive crime and low-level first offences and consideration where cases are complex involving children.

However, we must consider that, everyone is equal in the eyes of the law and each case must be tried independently according to evidence and circumstance. Men must also have the same right of leniency found of the same crime and circumstance as women based on a case-by-case bases. Evidence also suggests that at least some of the time, justice is not gender-blind – women in some instances are in fact treated more favourably than men in a court of law based on bias and perception of the presiding judge who can elicit a sentence using indirect coercion of the jury (Burnett and Badzinski, 2005).  Currently, there are more male judges residing than women although the shift in balance may have an opposing effect significantly through the eyes of a female judge or magistrate. The dangers of such leniencies are that female perpetrators (considered vulnerable or not) will not be held accountable for their crimes and so potential recidivism and harm to others, including their children may result in significant harm. Ultimately, having children does not exonerate a perpetrator of crime and where a man has children, should the same leniency not be afforded to him? The CJS should absolutely not be gender-blind but should treat each case equally individual, and without bias in the eyes of the law.

Men also have children, suffer vulnerabilities, would feel violated under strip-search conditions, especially if they had been sexually abused. Men also suffer complex mental health issues, PTSD, and hormonal difficulties. We must take care when removing the blindfold from a possible gender blind CJS that we do not tip the scales creating a punishment by gender environment. Research highlights the need to examine bias within our CJS several decades on and the need to find strategies on how we can minimise it to effectivity provide a compassionate person-based CJS instead of a gender-based CJS.  Our CJS should not be gender-blind, it should be person-orientated.

Gender Blind Justice: Should Women Be Treated Differently To Men?