‘Chivalry’ or ‘Doubly Deviant’?
Second wave feminist perspectives on the treatment of women in the Criminal Justice System. 1960-1990
The criminality of women and the response of the criminal justice system are subjects that have generated a growing amount of interest from the 1960’s onwards (Eaton, 1986). Before this period, women were rendered invisible within the criminological domain. It is not surprising since the bulk of crime was predominately studied and dominated by men (Newburn, 2012). The vast majority of criminological theories and research including arrests, prosecution and sentencing has entailed that of male offending (Nagel and Johnson, 1994). What we now know about female criminality has largely been associated with the emergence of a distinctive feminist criminology known as second wave feminism. Its aim was to challenge the gender-blind assumptions prevalent in criminology within this era and essentially to make women visible (Burman and Gelsthorpe, 2017). Criminology text books are now rich with literature surrounding the issues of gender and crime (Nagel and Johnson, 1994). We are now aware of women as offenders, victims and most importantly how they are treated within the criminal justice system.
Among many of important debates that have developed from feminist criminology in the late twentieth century, one topic has prompted further discussion (Heidensohn, 2006). It has been argued the agents of the law including judges, police and prosecutors systematically favour female offenders over male offenders (Nagel and Johnson, 1994). This assertion has been attributed to chivalry which suggests the criminal justice system takes a protective and patriarchal view of female offending (Newburn, 2012). Numerous feminists have challenged this view and have argued that the courts are actually much harsher on women who have transgressed both their social and gender norms thus considered ‘doubly deviant’ (Heidensohn, 1987). This “gender-based leniency” has been most evident in the sentencing process (Nagel and Johnson, 1994, pg.182). Therefore, the purpose of this dissertation is to analyse whether 1960’s and 1970 where it was more prominent.
This dissertation will involve the analysis of existing secondary research to explore the proposed question. Due to the time period under discussion, the main sources that will be consulted are books and journal articles. Secondary analysis contains high quality rigorous research which allows for a detailed critical analysis and scope for conflicting arguments (Bryman, 2016). A mixed method approach will be undertaken using both qualitative and quantitative research. Quantitative research will involve the use of criminal statistics for England and Wales within the 1960-1990’s that will be utilised to compare male and female offending. Sentencing statistics will also be consulted within the same period to develop an understanding of the different sentences men and women received. Most of the statistical data used have been extracted from the books that have informed this dissertation as statistics within the time period under consideration were not attainable from the governmental websites. As the focus of this dissertation is female crime, the qualitative approach will be from an interpretive feminist perspective. This entails interviews and observations that have been carried out by the researchers which means the research is done on greater detail and is high in validity.
Classical as well as traditional criminology has largely been concerned with the study of male crime (Newburn, 2013). When women were recognised, they were often stereotyped based on their biological and psychological natures (Heidensohn, Silvestri, 2012). The task of understanding women’s involvement in crime has therefore been undertaken by second wave feminism, which has essentially been concerned with the need to merge women into the criminological debate (Heidensohn and Silvestri, 2012), as well as developing a critical understanding of female offending, along with their treatment within the criminal justice system (Newburn,2013). One of the key themes which have been examined within feminist criminology has been the gender gap (Heidensohn, 2006). As quoted by Heidensohn, (1985, p22), “gender appears to be the single most crucial variable associated with criminality”. That is most crime is committed by men and little crime is committed by women. Heidensohn (1985) contends there is a casual link between women’s low participation in crime and patriarchy. A patriarchal society exerts greater social control over women within the workplace and the home which minimises the opportunity to offend. Indeed, the 1960’s was an era where women were oppressed and more economically disadvantaged than men (Heidensohn, 1985). Women therefore only account for a small proportion of known offenders (Heidensohn and Silvestri, 2012). What is then known about this small proportion of female offenders? What crimes do they commit? This chapter will aim to address these questions as it is essential to identify the nature of female crime in order to understand their subsequent sentencing patterns.
The female offender
The neglect of studying female criminality has been directly related to their limited appearance within the criminal statistics (Smart, 1976). Indeed figure 1 confirms this neglect. Women constitute a very small proportion of offenders compared to that of their male counterparts which is why they have received little attention and is also why they are considered less of a social problem. (Heidensohn and Silvestri, 2012). However, Smart (1976) argues statistical quantity is not sufficient enough to justify why female offenders are not treated as a social problem. It is also important to acknowledge the types of offences women commit in order to determine this (Smart, 1976). Before we explore this further it is important to note despite being one of the most informative sources in identifying male and female offending, crime statistics are heavily criticised for their reliability and validity (Burman, 2004). Crime statistics only include those crimes that are reported to and recorded by the police thus do not account for the so called ‘dark figure’ of crime (Walklate, 2001). They are therefore known to represent the ‘tip of the iceberg’ in documenting criminal behaviour (Walklate, 2001). Nonetheless, they are a useful source that reveals the types of crime and offences for which males and females commit (Burman, 2004).
Referring to figure 1, women are visible in the majority of offences from the most serious to the least serious although they appear less frequently compared to that of males. Despite there being a steady increase over the years, women’s share of crime is consistently lower than men. Closer examination reveals women are more likely to engage in less serious crimes than men such as those of theft from a machine, theft by employee and handling stolen goods. Smart (1976, p14) asserts, these offences represent an extension of the ‘normal feminine gender role’. This is because they do not require much skill or planning and are perceived as being less aggressive than male associated crime such as murder or those concerning violence. Therefore women are seen to be conforming to their expected female role as opposed to deviating against it. Women are also prevalent in forging and social security offences which are again consistent with the female gender role as Smart, (1976) claims the majority of female offences fit into the everyday activities in which women engage. The same can be said of those offences involving child stealing and cruelty of a child which are most likely to be committed by women as they are usually the primary carers of children (Smart, 1976). Shoplifting is also an offence considered to be closely related to the female gender role and one that is predominately committed by women (Smart, 1976). Figure 2 reveals a high proportion of men and women to be found guilty of shoplifting within 1969 – 1974, however women appear more prevalent. Statistically, shoplifting surpasses any other offence women appear to commit which seems plausible as they are predominantly the shoppers of household items, clothes, and food supplies (Smart, 1976).
Furthermore, it can be observed women are less likely than men to commit more serious crimes such as murder and those associated with violence. Smart (1976) asserts such offences represent ‘unfeminine’ behaviour as they conflict with the caring, gentle and nurturing role of the female sex. Interestingly, Smart (1976, p.16) reports on a study in the USA that argued although women are less inclined to violence, the choice of victim and the modus operandi of the offence is still keeping within the feminine stereotype. For example, as women are confined within the home they are more likely to attack those who they share a family relationship with such as husbands, lovers or relatives. They are also more likely to use household items such as a knife to attack their victims and may often do so due to self-defence, which may be a result of them being victims of abuse and violence from their partners (Smart, 1976).
Nevertheless, it is evident that women constitute a small proportion of offenders compared to that of their male counterparts and the crimes they commit are less dangerous and socially less injurious (Carlen, 2002). There was however somewhat of a ‘moral panic’ concerning the increase in female share of crime between the 1960’s and 1970’s (Heidesoshn, 1985) which raised questions as to the narrowing gap between male and female offending (Steffensmeier and Allan, 1996). The upsurge in female offending was considered to be linked to the emancipation of women which was claimed to have created new breed of violent female criminals (Adler, 1975). The liberation of women meant they would be relieved from their social constraints providing them with the opportunity to become involved in more masculine crimes such as robbery and violence (Heidensohn, 1985). Indeed Chesney-Lind (1997) states during this period the arrests rates within adult women increased to 60.2%, with juvenile arrests soaring to 253.9%. In addition, there was an increase in non-traditional crimes such as murder, robbery and violence against the person, with the latter increasing by 58% compared to 40% for males (Morris, 1987). However after examining female arrests between 1965 through to 1977, Steffensmeier (1980) concluded there was no difference in female arrest rates during this time frame; although there was an increase in theft, fraud and property crimes they still were considered to reflect the traditional female crimes. Steffensmeier (1980) claims the increase was due to women’s economic marginalisation rather than liberation. A similar argument was put forward by Box and Hale (1984) who claim the majority of women have not benefitted from liberation rather they are still unemployed or unemployable or if employed more likely to be in insecure, lower paid part-time jobs in which career prospects are minimal.
This has been voiced by a number of feminists. Smart (1979) and Gelsthorpe, (2004) argue the emancipation thesis ignores the fact that women are still unemployed, unskilled and suffer greater financial pressures. Equally they are still constrained to social and domesticated roles where they are overcome with childcare responsibilities and are often vulnerable to domestic violence and child victimisation. Consequently these vulnerabilities can be linked with ‘indirect pathways to crime’ (Gelsthorpe, 2004, p.26). Women have therefore become involved in crime due to reasons of poverty and economic marginalisation rather than a result of emancipation (Carlen, 1988). This has been referred to by Walklate, (2001, pg. 7) as the ‘feminisation of poverty’ thesis. Indeed as the statistics reveal, female offending is more acquisitive as it is more associated with financial difficulties and economic hardship (Hedderman, 2004). It is important to note although both men and women suffered from poverty within this era, the effect on women was greater as they were oppressed, abused and trapped by patriarchy (Chesney-Lind, 1997).
As we have gathered, women’s contribution to crime is consistently low compared to that of men and they are known to commit less serious offences. The offences they are more inclined to commit are according to Smart (1976) are consistent with the female gender role. Women are likely to be compelled to commit crime for reasons of poverty and economic marginalisation which was a predominant issue for women within this period. Therefore one can simply conclude that women are treated leniently than men based on this conception. However, as we will discover in the following chapter, the process of sentencing is more complex as there are numerous associated factors that are considered to determine what type of sentence a woman receives.
As quoted by Davies (2011, p 89), ‘the study of crime and deviance, the courts, judicial and criminal justice systems and processes were male dominated and legal centric’. Second wave feminism has essentially invited us to explore women as victims and offenders, yet at the heart of feminist research, remains the interest in the treatment of female offenders by the agents of the law(Naffine, 1997). Chesney-Lind (1978) as well as Moulds (1978) have noted, prior to 1960 there was little interest in the ways in which women were treated within the criminal justice system and suggests that it may have been attributed to the small number of women involved in crime. However, those who have speculated on the treatment of women offenders have raised the view that the justice system treats them more leniently than men (Chesney-Lind, 1978). Such views are referred to as the ‘chivalry thesis’ suggesting judges who are predominately male, display chivalrous attitudes towards women (Kempinen, 1983). Central to the chivalry thesis is the assertion that men adopt a degree of protectiveness towards female offenders as they are perceived as incapable of participating in criminal behaviour (Kempinen, 1983). This hypothesis has been best associated with the work of Pollak (1950) who cites; “men hate to accuse women and thus, indirectly, to send them to their punishment, police officers dislike to arrest them, district attorneys to prosecute them, judges and juries to find them guilty and so on”.
It has been argued that paternalism as with chivalry are contingent on women displaying traditional sex-role behaviours (Daly, 1989, pg.10) The key indicator of chivalrous or paternalistic behaviour towards women by the courts is to protect women, as they are assumed to be the physically weaker sex, defenceless and in need of guidance (Moulds, 1978). Moreover, the judiciary may be unwilling to subject women to the harsh conditions of prison as they see them as less violent and less of a threat to society than men (Gruhl and Welch, 1984). On the other hand, claims of the chivalry thesis has been contested by feminists who have argued that some groups of women are treated more harshly by the criminal justice system and are often labelled as ‘doubly deviant’. (Heidensohn, 1985). Such women are viewed as having transgressed both social and gender norms and are perceived as abnormal and unfeminine (Worrall, 1990). Double deviance therefore can lead to ‘paternalism, protectiveness and excessive punishment for women offenders’ (Heidensohn, 1987, p.20). It has been argued when a woman’s behaviour is outside the prescribed traditional sex role expectations, she may not be accorded such leniency, rather she may be perceived a worse criminal than a man who has committed a similar offence (Keith, 1991). Therefore she is sanctioned not only for the offence but for a breach of sex role expectations, hence the term ‘doubly deviant’ (Nagel and Hagan, 1981). The purpose of this chapter is to analyse whether the courts are in fact more lenient towards women than men at the sentencing stage as it has been suggested above. In addition, it will also address the potential reasons for why the courts adopt such an approach.
Sentencing statistics offer the strongest support to the assertion that women are treated more leniently than men within the courts (Eaton, 1986). Referring to figure 2, it is evident that a high proportion of women receive less severe sentences than men. Women are more likely than men to receive an absolute or conditional discharge and a probation order and are less likely to be sent to prison. Moreover, as previously observed, women appear to be involved in less serious offences and have fewer previous convictions than men which may contribute to the apparent leniency (Carlen and Worrall, 2004). In addition, Heidensohn (1985) states women are less likely to be recidivists and have shorter criminal careers. They are also more likely than men to admit their guilt and show more signs of remorse, thus are more likely to be cautioned than men (Carlen and Worrall, 2004). These overall factors may be considered influential as to the potential lenient treatment of women. Yet the disparities in the sentencing of men and women have prompted further debate (Eaton, 1986).
According to Worrall, “crime and law enforcement are presently male dominated worlds and women who enter them threaten the maintenance of the power relationship between men and women. As criminality is still characterised as a predominantly masculine trait, women who conform to criminal behaviour are perceived as ‘not women’ or non criminals”.
Worrall, (1990, p.31)
When women defendants enter the courts they are often not recognised as being real criminals due to their rare appearance within the criminal justice system (Worrall, 1990). Supporting this assertion, Hedderman and Gelsthorpe’s (1991) claim magistrates often found it difficult to sentence women offenders as they dealt with them less frequently. However, they found magistrates would categorise some women as ‘troubled’ as opposed to ‘troublesome’. Troubled women were first time offenders who typically committed less serious crimes than men and behaved respectfully in court. ‘Troublesome’ women were those deserving of punishment. ‘Troubled’ women in the eyes of the judicial, were sentenced to probation or given discharges in order to assist them to live law-abiding lives rather than punishing them (Hedderman and Gelsthorpe, 1991). This therefore, reinforces the paternalistic need of protecting and caring for women as they are seen as weak and irresponsible (Viki, Massey and Masser, 2005). This concept has been echoed by Eaton (1986), yet she reports on various studies having found a certain gender role factor, particularly in relation to girls. For example, courts seemed to be imposing a specific gender role on young women who display unfeminine behaviours as not to affect their future roles within the domestic domain (Eaton,1986). Similarly, Chesney-Lind (1978,p.216) concluded that women’s roles influence the sentence they receive. She cites, “women who engage in traditionally female offences may enjoy some benefits before the court, particularly if they can establish themselves as women fulfilling other traditional roles. The former claim was consistent with the findings of Nagel and Weitzman (1971) who assert, female offences that were consistent with sex role expectations were less likely to receive severe sentences as opposed to those offences which were perceived as less traditional. For example, they found in the cases of theft, 64% of women received a suspended sentence or probation as opposed to 43% of men. Conversely, women were more likely than men to be imprisoned for cases of assault in the view that it is considered a more masculine crime than theft (Nagel and Weitzman, 1971).
Furthermore, magistrates may sympathise with women in cases such as theft, as we have come to acknowledge women are more likely to steal for need rather than greed (Heddernam and Gelsthorpe (1999). Pearson (1976, p.268) refers to such women as ‘social casualties’ as her findings revealed women accused of shoplifting were categorised as being single mothers with dependent children often supported by the welfare system. Pearson (1976) notes magistrates were known to respond to these women as they would respond to a juvenile; that is, not viewing them as fully responsible for their actions. Worrall (1990) refers to as the ‘compassion trap’. This is partly because women are ‘less criminally inclined’ thus when they do offend, their actions are perceived as a “cry for help”, resulting from stressful financial and domestic circumstances (Gelsthorpe, 1989, p.1). Essentially, poverty was a predominant issue for women according to Pearson’s (1976) findings, and responsibility was lessened because of this. This did not however excuse violation of the law, thus magistrates would respond by subsequently imposing nominal sentences such as a small fine or discharge, whilst other women were remanded for psychiatric reports, even when they appeared to offer a rational explanation for their crime (Pearson, 1976). The latter may imply that the courts feel women need to be explained rather to explain their criminal behaviour (Worrall, 1990).
Allen (1987) explores this concept further in her analysis of the interaction between psychiatry and the law. She noted women to be twice as likely as men to be dealt with by psychiatric rather than penal means. This she argues, invokes the belief that men are perceived as ‘bad’ and women as ‘mad’ (Allen, 1987,p.1). In supporting this assertion, Allen (1987), refers to a case where both female and male defendants were jointly charged for robbery. The female who had no history of psychiatric illness was sentenced to probation with the condition to receive psychiatric treatment, conversely, the male, who had a history of psychiatric illness was sentenced to two years imprisonment. The sentence imposed may be attributed to the courts lack of experience in dealing with female offenders due to their limited appearance within the justice system (Worrall, 1990). As one male magistrate commented in a separate study; “women offenders are different physically and emotionally – more complex, I don’t understand them” (Worrall, 1990, p.66). Seemingly, it may be conceived women are assessed, judged and treated not because they are understood but because they are not (Worrall, 1990). It can therefore be argued that the courts are responding to and adopting the traditionally held views of women as pathological subjects who ought to be ‘cured’ or ‘treated’ for their own good (Heidensohn, 1985).
Farrington and Morris (1983) have a somewhat different argument. They claim although criminal statistics provide information in relation to the sex of the offender and the types of offences they commit, they do not control for other variables that may influence sentencing patterns. For example, drawing from the criminal statistics in 1979, they found women who were guilty of shoplifting to be sentenced to probation or discharged. Men on the other hand, were sentenced to immediate or suspended imprisonment. On the face of it, this may lead one to suggest that women are treated more leniently than men. However, Farrington and Morris (1983) observed the difference in sentencing was influenced by factors other than the sex of the defendant. For instance, in the case of shoplifting, the value of stolen goods was found to be an influential factor in determining the sentence (Farrington and Morris, 1983). Indeed as Heidensohn (1985) notes, men are more likely than women to steal items at a much greater value which may explain why they receive harsher sentences.
Nagel’s (1981) analysis controlled for a number of variables, including offence type, previous convictions and marital status. She found women to be sentenced more leniently than men when previous convictions were controlled for. Nagel (1981) asserts the likely effect of previous convictions on a sentence was stronger for men than women as men offend at much higher rates and are likely to be involved in more serious offences. Conversely, factors such as marital status were more significant for women than men. Married women were less likely to be sent to prison than unmarried women (Nagel, 1981).The type of offence was also a relevant factor in relation to women as female violent offenders received harsher punishments than female property offences (Nagel, 1981). Subsequent sentencing patterns of women may be explained by a violation of sex role expectations as well as breach of the law (Chesney-Lind, 1978). Along with Nagel (1981), Farrington and Morris (1983) found marital status to be a prevalent factor for women. Divorced and separated women received relatively severe sentences, as well as those from a deviant family background, thus supporting the ‘doubly deviant’ woman thesis (Heidensohn, 1996).
Aside from this, Farrington and Morris (1983) found no evidence of chivalry towards women despite the fact that more men (36.9%) were found to be receiving more severe sentences than women (15.7%). However they argue, these figures do not reflect leniency, rather it is a consequence of men’s criminal history. Men are known to commit more serious crimes and have more previous convictions. Women on the other hand, may receive lenient sentences as they appear to commit less serious crimes and are less likely to have been convicted previously (Farrington and Morris, 1983). Conversely, within the same study, Farrington and Morris (1983) found female magistrates dealt with women defendants more severely than male magistrates. For example, 19.1% were sentenced by females as opposed to 9.6% sentenced by men, thus providing support for the chivalry thesis (Farrington and Morris,1983). Morris (1987) asserts female magistrates may disapprove of such women as not conforming to notions of respectable women hence punished more severely. The concept surrounding respectability was further highlighted in the work of Kruttschnitt (cited in Morris, 1983) who found regardless of the offence, the lower the women’s respectability the greater the likelihood that she would receive a severe sentence. Respectability relates to whether the offender has a good employment record, no drug or alcohol use and no psychiatric history (Kruttschnitt cited in Morris, 1983). If women fell within the band of respectability they were accorded lenient sentences as opposed to those who did not present themselves as such. The notion of respectability applied more to women than men, as “reputation is both less important and less easily damaged for men than women”(Kruttschnitt cited in Morris, 1983, pg.90).
In a separate analysis, Kruttschnitt (1982) examined probation reports of women defendants convicted of various crimes in order to determine the main influence of sentencing. She observed economic dependency of the defendant to be a prominent factor in determining the severity of the sentence they received. Kruttschnitt (1982) found the more economically dependent a woman, the less severe her disposition. She states women who maintain a degree of informal social control in their life will receive less formal (i.e, state-imposed) control. Kruttschnitt (1982) reports probation officers would recommend less formal control for those who were held to be in a position of strong economic dependency, i.e supported by another such as family or partners. Similarly, in a separate study, Kruttschnitt (1981) found those women who could identify themselves with being socially integrated were more likely to receive lenient sentences (Kruttschnitt, 1981).Women who were employed or those motivated towards fulfilling goals particularly in the home were accorded with more leniency as opposed to women who were recipients of welfare benefits or were unemployed. As a result, Kruttschnitt (1981) came to the conclusion that a woman’s position in society determined the severity their sentence.
A similar conclusion was put forward by Eaton (1986) who maintained women’s roles within the family context determined the sentence they received. In hindsight, she found magistrates to be responding to the circumstances of each case irrespective of the sex of the offender. On the rare occasions where men and women appeared in similar circumstances, they were treated equally in respect to the sentences they received (Eaton, 1986). However, she found great emphasis was placed on the familial role of men and women in which gender role was most prevalent. For example, the male was seen as the head of the family as a father, husband and breadwinner. Conversely women were placed within the conventional domesticated sphere as carers of children and dependent on their partners economically, financially and emotionally; all that would define their subordination to men (Eaton, 1986). One magistrate was found to blatantly express the need of a woman to be in full time employment as it separated her from her children (Eaton, 1986). This implies that it is the norm for a man to provide financially for his family, whilst women are expected to remain within their domesticated roles (Eaton, 1986, see Worrall, 1990 below).
Probation was therefore found to be the most appropriate sentence recommended for a higher proportion of women compared to that of men (Eaton, 1986). This was inherently due to women being first time offenders and having fewer previous convictions than men. In addition, women were sufferers of financial and domesticated stress thus probation was seen as a way of helping them as opposed to punishing them. Again, this reinforces the paternalistic need of protecting women (Eaton, 1986). Eaton (1986) concluded the different treatment of men and women stemmed from differential family roles which as a consequence results in inequality driven by patriarchal ideologies.
A later study conducted by Daly (1987) also found men and women to be treated differently on the basis of their ties to responsibilities for others. She observed family men and women (those with dependants) were more deserving of the courts leniency than those with no dependants although a greater deal of leniency was directed towards women. Daly (1987) reports judges were more concerned incarcerating women with dependants as it would disrupt the maintenance and protection of family life. Judges were found to justify sentences based on the labour hierarchy whereby the care of children was primary and economic support (usually provided by a man) secondary for maintaining families (Daly, 1987). Daly’s (1987) findings reveal 8 out of 20 judges agreed they protected women on the basis of children, moreover having strong family ties suggests greater social conformity and greater informal social control thus as per Kruttschnitt’s (1981) argument, reduces the level of formal control. However Daly (1987) further contemplates that there are greater social costs attached to removing the ‘care giving mother’ opposed to the ‘working ‘father’. She claims judges took the view that incarcerating women will impose a burden on society to care for her children, or more precisely, placing children in care would impose more costs on tax payers. Therefore Daly (1987) concluded judicial paternalism was for the protection of children and families, not women. Judges were more concerned about the welfare of children, thus the lenient treatment accorded to women was related to their gender role as primary carers of children.
The extent to which domestic responsibility plays an integral part in the sentencing of offenders was an area further explored by Carlen (1983) and Worrall (1990). Both studies observed magistrates to respond more leniently to domesticated women. One magistrate explicitly stated “women are treated no differently from men, except where there are domestic circumstances – that’s only natural” (Worrall, 1990, pg.60). Worrall draws on two arguments that would compel magistrates to explain or excuse female criminality. First, a mother may indirectly be led into crime through the pressures of family life particularly if she is a single mother. Equally domestic problems may also lead to alcohol abuse which was recognised as a valid explanation so long as they can show that they are seeking help (Worrall, 1990). Evidently, Worrall (1990) states this was the case for one female who stabbed her partner under the influence of alcohol but was afforded some leniency by the magistrates as she attended treatment for her alcohol problem (Worrall, 1990).
Secondly, domestic responsibilities are inherently more favourable to women than men at the stage of mitigation when sentencing. According to Worrall (1990), solicitors placed great emphasis on women’s roles as mothers and wives as to 1) gain sympathy in order to understand their motivations for crime and 2) to afford some leniency in relation to their treatment. In concurrence with Daly (1987), Worrall (1990) claims magistrates expressed their reluctance to send a mother to prison as it would consequently affect her children. As one magistrate stated; “in cases where women have in their care babies or young children I feel that magistrates explore every possible sentence other than imprisonment” (Worrall, 1990, p.61). This statement corresponds to the subsequent sentences that were imposed on women in these circumstances. For example, Worrall (1987) found magistrates were more inclined to impose a probation sentence as opposed to a community sentence since the latter was viewed as time consuming for women with domestic responsibilities. Probation was therefore seen as least disruptive to women’s lives and was considered more adequate than a fine due to women’s lack of financial competence (Worrall, 1987).
On the other hand, Worrall (1990) argues despite the above claims there are a number of children with mothers in prison. This she asserts can potentially be explained as a response to women using their domestic responsibilities as a form of blackmail, therefore are not deserving of sympathy and are punished more punitively (Worrall, 1990). Additionally as Carlen (1983) discovered, it can be response to differentiating between good and bad mothers as observed by sheriffs in Scotland. Carlen (1983) reports sheriffs imprisoned women whom in their eyes, had failed as mothers (Carlen, 1983). Sheriffs held the belief that ‘bad’ mothers need training to become ‘good’ mothers and can be achieved by sending them to prison where they can acquire such skills (Carlen, 1983). A comment made by a governor at Cornton Vale prison in Scotland supports this view, “women should come here for at least six months, then we can train them to be good mothers and they’re grateful” (Worrall, 1990, pg.61). This is most certainly an appropriate example where protectiveness can indeed lead to excessive punishment (Carlen, 1983). As Carlen (1988) has expressed, the majority of women who are sent to prison are not assessed according to the seriousness of their crimes rather they are assessed in accordance to their roles as wives, mothers and daughters.
What seems to be emerging from these findings is far from treating women leniently; the courts are imposing or retaining a certain degree of social control over women driven by stereotypical expectations of their conformity within society. Heidensohn (1996) notes the values of the legal system are shaped by patriarchal ideologies; defining women as different and subordinate thus placing women in conventional and traditional roles in which they should remain. As Chesney-Lind (1978) suggested and as observed within the findings, women who commit ‘feminine’ crimes and maintain other traditional roles, such as being respectable, married, domesticated, and are economically dependent may fare better than their male counter parts in the process of sentencing. Morris (1987) claims this is solely an attempt of the criminal justice system controlling the boundaries of the female role. On the contrary it may be fair to suggest that women may be treated leniently simply because they commit fewer and less serious crimes than men, . What then happens to those women who do not conform to these ‘stereotypical’ notions of traditional and conventional women? Are they dealt with more punitively as argued by feminists? How do the courts respond to these women? The following chapter will aim to address these questions.
As we have come to acknowledge, women’s share of crime compared to men is relatively low and they appear before the court less frequently which is why they seem stranger and thus less comprehensible than men (Heidensohn, 1985). Therefore, when women violate the law they are often faced with what Heidensohn (1985) refers to as a ‘vicious circle’. They are seen as ‘doubly deviant’ for transgressing both social and gender norms, thus the courts are much harsher on women than they are on men (Newburn, 2013). Myra Hindley provides an ideal illustration of a woman who possessed traits that violated the traditional female gender role (Viki et al, 2005). Her crime of the murder of two children represents an extreme violation of the traditional female stereotype of being caring and nurturing towards children, she was therefore termed ‘doubly deviant’ (Viki et al, 2005).
From a different perspective, Worrall’s ‘Offending Women’ 1990 offers an insight into the criminal lives of fifteen law breaking women. The women within her study are unemployed, poorly educated and live in conditions of poverty. In addition, they are single mothers who are supported by the welfare system and are regarded as deviant for their lack of economic dependence upon a male (Worrall, 1990). They are therefore known to represent the women who do not conform to the female expectations of traditional conventional women. Moreover, they are defined as ‘troublesome’ as opposed to ‘troubled’ due to their tendency to engage in repeat criminal behaviour. Eight out of the fifteen women had numerous previous convictions thus were considered difficult to categorise since women are usually first time offenders and recidivism is usually regarded as a masculine trait (Worrall, 1990). Most of the crimes committed by these women are ‘typical’ offences of theft, deception and fraud however some offences such as child abduction and murder are considered ‘unfeminine’ crimes. The task for Worrall (1990) was to explore the ways in which the ‘experts’ in the criminal justice system (probation officers, psychiatrists, solicitors and judges) attempt to make sense of their criminality as being either ‘not criminal’ or ‘not woman’ as to explain or excuse their criminality. In so doing Worrall (1990) states;
‘the female law breaker is routinely offered the opportunity to neutralise the effects of her lawbreaking activity by implicitly entering into a contract whereby she permits her life to be represented primarily in terms of its domestic, sexual and pathological dimensions. The effects of this ‘gender contract’ is to strip her lawbreaking of its social, economic and ideological dimensions in order to minimise its punitive consequences’
(Worrall, 1990, pg.31)
In other words, Worrall (1990) contends women who break the law ‘must compensate for their unfeminine criminal behaviour by presenting themselves as domesticated, sexually passive and constitutionally fragile (ibid: 141). To clarify, domesticity relates to the extent of women’s domestic responsibilities, sexuality is the extent to which her behaviour, appearance and lifestyle accord with sexual normality and pathology is the extent to which her problems can be pathologically ‘treated’ (Worrall, 1987, p.114). When a woman violates the contract by committing a crime the criminal justice system goes to great lengths to restore her to it (Carlen and Worrall 2004). If women can be restored into the gender contract by presenting themselves within what Worrall (1990) refers to the discourses of femininity, they may be treated more leniently. We have already established women who can present themselves sufficiently within the realms of domesticity may be accorded some leniency (Eaton, 1986). However Carlen and Worrall (2004) note not all women will commit to the contract. Worrall’s (1990) study documents the experience of such women who reject the contract. She calls them ‘non-descript’ women who refuse to identify themselves within the stereotypical category (Worrall, 1990). An example of some of the women have been extracted from Worrall’s (1990) study and presented below.
Fiona’s offence concerned the conspiracy to cause GBH for which she received a lenient treatment of £100. The influential factors that contributed to the lenient sentence was due to her being perceived as a good daughter, was remorseful for her crime and supposedly suffered from depression. Additionally she was under the influence of other males and was not directly involved in the assault that took place therefore her role was more passive (Worrall, 1990). As we have previously discovered, these factors constitute characteristics of the typical female offender, thus Fiona bought in to the gender contract and was treated more leniently.
On the other hand, Jean’s offence of baby snatching was regarded as ‘highly gender inappropriate’ since ‘real’ women would never do such an aggressive and uncaring thing (Worrall, 1990, pg.38). Moreover, her past crimes and convictions are more associated with masculine behaviour. Additionally, she is seen as a bad mother as she has abandoned her children who are now in care, thus taking the view from the sheriff’s in Carlen’s (1983) study, she would be deserving of punishment. She was also considered promiscuous due to her involvement in prostitution. The probation officer therefore took the view that she was neglectful of the needs of her children by fulfilling her own sexual desires (Worrall, 1990). Jean therefore represents a woman that does not buy into the gender contract and one that cannot be restored due to her unwillingness to receive psychiatric treatment. She is also an example of a ‘doubly deviant’ woman by not conforming to appropriate expectations of the female sex role thus was punished to a harsh prison sentence.
Ivy and Kathy are complex yet interesting cases. Ivy pleaded guilty for stealing a jar of coffee on the grounds of mental illness. Yet despite the trivial nature of her crime she was given a harsh sentence of 3 years probation. It can be suggested that she most probably deviated from the appropriate female role expectation, as she was divorced, unfaithful to her husband and lacked male support. She was also afforded less sympathy despite having a history of psychiatric treatment. Worrall (1990) states this was primarily due to her presenting herself as clear and lucid in court thus she was unable to convince the magistrates of her innocence. As Ivy attempted to medicalise her own condition she failed to present herself as ‘muted’ (Worrall, 1990). As we have previously noted, women are usually denied a sense of agency for their actions however Worrall (1990) asserts Ivy portrayed herself as taking responsibility for her actions rather than reducing it by which her grounds for dismissal under pathology were discredited.
Conversely, Kathy successfully escaped a murder charge under the element of pathology. Kathy murdered her sister out of anger, yet despite the seriousness of her offence, she too received the same sentence as Ivy. Worrall (1990) argues this was because her actions were that of a ‘very typical teenager’ and suffered epilepsy. Therefore unlike Ivy, she was presented as not understanding the consequences of her actions. In addition, she was perceived as a good daughter and her family acted as a mode of informal social control which reduced the need of formal social control (Kruttschnitt, 1989). Furthermore, Kathy is an ideal illustration of a woman who has kept within the ‘female stereotype’ despite committing a serious crime. If we revert back to chapter two, Smart (1976) stated women’s victims tend to be those who the offender shares a close relationship with and are more likely to household items to attack. In this case Kathy killed her sister out of anger with a knife, therefore the theory in which Smart (1976) reports seems plausible in relation to this case.
The above cases illustrate how the courts attempt to make sense of women as offenders by placing them with the discourses of domesticity, sexuality and pathology. If female offenders who have committed non-traditional offences are found to be psychiatrically unwell like Kathy then this reinforces the paternalistic need for women to be cared for as opposed to being punished (Viki, et al,2005). Women like Kathy are therefore perceived as ‘mad’ than ‘bad’ (Allen, 1987). Conversely, if women like Jean commit non-traditional crimes that cannot be attributed to mental health then they will be perceived as ‘bad’ rather than ‘mad’ and punished more harshly (Viki, et al, 2005). One may suggest why the courts take this approach. According to Carlen and Worrall (2004) it is an attempt of the criminal justice system to restore the informal social control that has broken down in a women life. As previously indicated in chapter 2, women are subject to greater informal social control then men through family responsibilities which reduces their opportunity to offend. However when this control breaks down, formal methods of social control need to be invoked (Carlen and Worrall, 2004). This seems to be evident for women like that of Jean and Ivy.
Why do the courts adopt this approach towards female offenders? Carlen (2002, pg.4) provides an ample explanation as she cites “when women come before the courts they have, more often than not, been seen less as criminals and more as either maddened or misguided victims of a variety of malign social circumstances”.
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