Gender Responsive Justice

A Critical Appraisal

Karen Evans

• Publisher: Routledge
• Year: 2017
• eBook ISBN: 9781351864688
• Edition: 1
• Topic: Sozialwissenschaften
• Subtopic: Kriminologie

At the end of the twentieth century a step-change in thinking about the offending behaviour of women began to impact on policy-makers concerned with the treatment of female offenders. A growing number of nations, states and organisations both national and supra-national in nature began to acknowledge that existing criminal justice and especially penal practices had not been sufficiently attentive to women's needs and had discriminated against women as a result.

The concept of 'gender-responsive justice' – an orientation to working with women and girls based around a consideration of the special needs of women as prisoners and their particular pathways to offending – has been developed as a result. This book explores the development of this concept, the theories which have informed it, policy arenas in which gender-responsive justice has been attempted and the practices of gender-responsive justice which have subsequently emerged. This book takes a global perspective as it outlines the different international and national arenas within which gender-responsive justice gained favour and considers what has been learned from this novel and feminist-inspired approach.

Gender-responsive justice has not been without its critics, however, and this book also examines the different arguments which have been used to attack or critique the concept from varied perspectives. This book lays down a clear theoretical framework for understanding gender-responsive justice and will be useful in assessing current and future policy-making in this area.

Chapter 1

Man made punishment

While claims as to the universal nature of the law and its equal applicability across society have been challenged by many philosophers across the ages, theories of punishment have not been held up to the same scrutiny. Penal theory has, in the main, considered how society should rightfully and justifiably respond to an offending act but in the goal to develop regimes of penality there has been little reflection on the unequal distribution of power and agency within the societies in which practices of punishment operate. Liberal theories have considered the threat of punishment as a deterrent necessary for the maintenance of social order without questioning the nature of that order which is to be sustained and the manner in which it may be differently constituted for various social groups. Retributive practices have based their argument on a moral judgement, that punishment is a justified response to a wrongdoing which should reflect the harm of the crime committed, without a consideration of the ways in which morality is both differently applied and policed across society. While the nature of and rationalisations for punishment have undergone significant paradigmatic shifts over the centuries, each system has been considered as germane to all members of the society in which it has been applied and considered as the most apposite method through which all those who have been wronged can be afforded some sort of redress. There has been little room in these different conceptions of punishment and its utility for a consideration as to how practices of punishment may be differentially experienced or understood by the law-breaker themself, or indeed as to how punishment may be more or less effective for different social groups. The rules and justifications for different models of punishment have been considered as universal systems which should be applied to all.

The punishment models which we currently utilise in order to frame our response to law-breaking were developed prior to the formation of critical theories such as feminism which have highlighted the unequal distribution of rights across societies. Established and centuries-old theories of punishment have become deeply entrenched into our ways of thinking about and practising punishment and in justifying the right to punish. These established approaches suggest that punishment is located outside of and above the messy structures of everyday life and that the principles on which punishment is based constitute universal truths. Indeed for many these truths have been decreed by a higher power, whether that be earth-bound or heavenly, with a paternal concern to ensure a better society for all. Punishment is accepted as a constant in society and as based on a system of morals which supersede the day-to-day exercise of authority and which ultimately hold us all to account whatever our position in society, regulating the behaviour of all on equal terms. We are, as a society, less familiar with the more critical and complex understandings of punishment which have more recently emerged over the last 100 or so years and which have called for a new approach to our understanding of punishment (see discussions of Marx, Nietzsche, Foucault and Menninger in Tunick 1992). These radical critiques have considered punishment as linked to extant social conditions, less a response to crime than an expression of social and economic power and its maintenance. Punishment regimes have been reconceptualised as systems through which the powerful maintain their hold over society and find justification in their reproach and censure of ideas and individual actions which threaten the maintenance of power, and which also hold the powerful to a different set of standards than those which are applied to the powerless (Tunick 1992).

The development of punishment in practice and in theory has missed numerous opportunities to include the perspectives of women. As a consequence the theory and practices which have been developed have been masculinist in the extreme; not only have women’s experiences been ignored but an underlying and overwhelming misogyny has gone unremarked. As we will see in the following exploration of punishment over the centuries, it took the blossoming of second-wave feminism and its interventions into the subject from the late 1960s before any serious account of the punishment of females was attempted. The remainder of this chapter considers this writing out of women and later turns to the early attempts by feminists to put right this wrong and to challenge masculinist accounts of the place which punishment has held in societies, contemporary and past.

The privatisation of punishment for women and girls

Systems of punishment, while they reflect the dominant cultures and beliefs held within society in any particular period, are also influenced by a society’s traditions and customs and they must be understood in their historical as well as their current social context. Furthermore punishment plays a significant part in the more general and widespread apparatus of social control which exists in any society and reflects the extant economic and social relations which are played out in both the public and private spheres (Garland 2001, Hudson 2003). Nietzsche was an early critic of punishment, which he revealed as a social practice. In his 1887 essay On the Genealogy of Morals Nietzsche considered punishment, not as a fundamental moral response to harm, but as a way in which the powerful could exercise and enjoy their control over others whom they considered to be beneath them and subject to their authority (Tunick 1992:21). Modern theories of punishment claim to have rationalised and regulated mechanisms of social control in society in order to eradicate the abuses of power which characterised the punishment regimes of autocratic pre-modern and pre-democratic societies. In many ways, however, they have failed in this endeavour, integrating instead the discriminatory practices of former ages into what are considered modern and egalitarian forms of punishment. While the form and seat of power may have shifted somewhat, members of less powerful social groups are still subject to markedly differing degrees and types of disciplinary control than those played out across society as a whole. As Foucault (1979) observed, the power to punish is not solely located within the key institutions of the justice system but is equally found inside family and neighbourhood and within the dynamics of our most intimate relationships. A combination of historical and discriminatory practices and beliefs as well as the everyday pervasive and pernicious control of the female sex has placed women in a particularly invidious position when it comes to the willingness of society to punish what have been considered their deviant acts. These cumulatively reinforcing mechanisms which play out at all levels of society explain the eagerness with which particular forms and levels of discipline have been, and continue to be, disproportionately applied in order to control the behaviour of women and girls.

Women and girls have suffered detriment in multiple ways. They have historically been considered of less economic and social value than have men and boys and as a consequence less care was taken over their safety and security (Newman 1978). In addition the punishment of females has often been handed over to the father or husband so that sentence could be privately administered, ensuring that the family was not publicly shamed by her guilt. One consequence of the surrendering of punishment to the private arena of the family has been the absence of a public regulation and scrutiny of the punishment of women in the home – a problem whose legacy is all too evident today and is played out in the private beatings and coercive controls to which many women are still subjected within their familial and intimate relationships. The female sex continues to bear the responsibility for upholding the moral standing and honour of the family, with transgression subject to severe punishment, even to the extent of ‘honour killings’ which are nothing short of femicide, where individual women are found to have fallen short in this task, their guilt firmly established and punishment enacted outside of systems of public justice (Carrington 2015). The privatisation of the punishment of women and girls has been institutionalised both through the enactment of laws which have sanctioned this relationship and through the censures placed on the behaviour of women and girls through more informal, often family-based, moral injunctions.

By the Middle Ages, Newman (1978) argues, the law was increasingly institutionalised into public life which meant that women were more often brought into public systems of censure and were sentenced and punished alongside men. Rather than achieving parity in their treatment however, the discriminatory, and publicly approved, privatised practices of the past endured alongside this entry of women into systems of public justice. So while records for this period show fewer women were brought to trial than men – a ratio of one to every nine men – this did not signal an improvement in the treatment of women, as Newman (1978:57) suggests. Newman makes a number of errors in this proposition which have since been often repeated; first the error of measuring the control of women only in terms of formal systems of punishment and sanction and then to assume that formal institutions afford everyone who comes before them the same respect and impartial judgement. The inclusion of women who break the law into formalised systems of justice only added another layer to their control in society which institutionalised former practices of patriarchal power. The double burden of parallel and mutually reinforcing systems of punishment has been devastating in its impact on the female sex but this has largely gone unremarked. The evidence, however, is all too clear. Women who killed their husbands, for example, were likely to be charged with treason as they had killed their ‘lord’ and superior. Females who killed spouses were consequently more likely to receive the death penalty whereas men would be judged to different standards and receive a range of penalties, many of which would be much less severe. Indeed, men who killed women could be completely exonerated and their actions considered justified in various ways (Newman 1978). The institutionalisation of patriarchal practices further robbed women of their agency and severely punished them for stepping outside of accepted behavioural norms. Within the family they remained subject to the controlling hands of husbands and fathers who were supported in their violence by the law for many centuries. Indeed it could be argued that, in the current disproportionate violence to which women are subjected in the private sphere, these earlier accepted forms of discriminatory punishment still apply to women in the home today. In addition it is only in recent history that legislation has been amended in some countries to outlaw the privatised punishment of women and girls and to afford the female sex a measure of equal treatment by the law.

The silencing of women

Western justice systems have been profoundly influenced by early Christian teachings within which women have been afforded a subordinate role. Within these scriptures, written largely by men, are many examples where women’s voices have been subjugated and wherein women have been advised to remain submissive subjects of their male relatives. Men, by contrast, were charged with the education of women and with the policing of their behaviour as the following quote reveals:

The women should keep silent in the churches. For they are not permitted to speak, but should be in submission, as the Law also says. If there is anything they desire to learn, let them ask their husbands at home. For it is shameful for a woman to speak in church.

(1 Corinthians 14:34–35, ESV)

Christianity has also included the significant and recurrent trope of the female sex as dangerous to men, casting woman as the powerful temptress who can bring men down to base and sinful ways. Men are enjoined to be wary of the power of female sexuality and to subject women’s appearance and behaviour to tightly limited restrictions as a consequence. To ensure women do not bring men into disreputable behaviour the female sex was trained to be demure and chaste, to stay within the bounds of domesticity and respectability and to pass these ‘virtues’ on to succeeding generations:

Older women likewise are to be reverent in behaviour, not slanderers or slaves to much wine. They are to teach what is good, and so train the young women to love their husbands and children, to be self-controlled, pure, working at home, kind, and submissive to their own husbands, that the word of God may not be reviled.

(Titus 2:3–5, ESV)

The other major Abrahamic religions, Judaism and Islam, have similarly embraced both the submission of women and the fear of their inherently dangerous nature as major organising frameworks for the treatment of the female sex. As a result, penal codes in regions where these religions have dominated have also reflected these ideas.

Religious codes and practices have often subjected women’s behaviour to special attention. Women were singled out as a significant object of punishment during the period of the Inquisition, which sought the extermination of heretics; additionally the charge of witchcraft was most often pursued against the female sex (Smith 1962:60). The dominant religions in the east have been equally discriminatory in their monitoring of women, with the possible exception of Buddhist teachings which professed equality between the sexes (Conze 2008). Misogynist and male-centred readings of Hindu scriptures and Islamic scholarly texts, however, have substantially influenced the penal code of much of the Asian continent and have, for centuries, denied full rights to women and severely limited their access to justice across that region of the world and in other areas where these religious teachings have prevailed (Conze 2008, Jones-Pauly 2011, Peters 2005, Sinha 2012). Confucianism has in a similar vein adopted a different set of rules for the female sex, embedded in patriarchal mores, which have restricted women and girls to domestic duties and an unflinching obedience to men (Gao 2003).

The colonisation of much of the world from the time of the Spanish conquistadors by predominantly Christian nations helped spread discriminatory attitudes towards women across the global south. Far from bringing more enlightened attitudes towards women in its wake and despite its claims to be a civilising and modernising force, imperialism imposed Christian perspectives and values onto the colonised nations which further reinforced extant chauvinistic and prejudicial attitudes towards the female sex. In India, for example, Sinha (2012) writes, the British governors, while they might have privately opposed the more barbaric practices involved in women’s subjugation such as the practices of purdah, sati and the marriage of female children, remained generally silent on their attitudes to the privatised punishment meted out to women and girls and in public adopted a policy of non-intervention on matters of custom and tradition. It is suggested that there have been seismic shifts in the balance of power between the sexes and in women’s access to justice. Before the writing of the Manusmriti, the traditional Hindu religious code-books, women enjoyed equal status to men and Jones-Pauly (2011:xvii) argues that ancient Islam was in its early manifestations ‘revolutionary in its gender relations for the time’; however, as we have seen here, over the ensuing centuries the balance of power clearly shifted in favour of the male sex.

Retributive principles and the undervaluing of the female sex

Retributive theories have dominated religious teachings on punishment. Retributive principles have considered punishment as a moral imperative requiring that a wrongful act be repaid by a punishment which ‘fits’ the crime and that the punishment should, by mirroring the crime, be seen to make recompense to the one who has been wronged. The most well-known of these strictures suggests ‘an eye for an eye, a tooth for a tooth’, a maxim which ‘is deeply embedded in Judeo-Christian religion’ (Newman 1978:190). Retributive theories also lie behind the granting of ‘blood-money’ as compensation to the families of murder victims, a practice still evident in a particular interpretation and application of Islamic law which is still prevalent in some countries. Retributive approaches to punishment claim a neutrality towards both the law-breaker and the victim with a focus instead on the crime committed, maintaining the principle that approved levels of punishment depend on the severity of the crime alone. In practice, however, designated punishments have not been proportionate in quality or kind. Retributive principles are wide open to discriminatory practices. They involve a measurement of the harm done to the victim which involves a consideration and calculation of the victim’s worth and the court’s ability to compensate for the damage experienced. Some types of victims have been considered more valuable than others, attracting a higher blood-price, while those considered of a lesser worth or value are compensated to a diminished extent. In some legislative codes, for example, the blood-price of any woman or of a non-Muslim male has been calculated to be half that granted for the loss of a Muslim man (Peters 2005:51).¹ Retributive punishment has been applied inequitably because society itself is riven with inequalities and as a consequence of patriarchal social ordering females have been denied even-handed treatment. Males have been awarded more status, with crimes committed against them considered more socially harmful. With the female sex afforded so little status in society, her possibility of gaining any sort of justice through the application of retributive principles was severely curtailed.

Whilst retributive practices were said to have been superseded by more liberal and enlightened thinkers in the eighteenth century (further discussed below), the 1970s witnessed a revival of retributive principles initially in the US (Howe 1994). The modern-day retributivists returned to these older principles in order, they argued, to remove what they perceived as discriminatory practices which had pervaded the workings of the criminal justice system. According to these liberal and progressive penologists, punishments in modern judicial systems had become too divorced from their link to the crime committed. Instead, judicial discretion had led to a disparity in sentencing and had become a source of inequality and discrimination in itself. The power to punish and detain, these writers argued, had been handed over to individual sentencers, parole boards and probation officers who in assessing individual risks were applying negative stereotypes to certain social groups or demanding acquiescence to a set of behaviours before parole could be considered (Hudson 2003:39–40). Female law-breakers, especially those who did not conform to social expectations, were considered as a particular risk, as doubly deviant and therefore punished for the crime of stepping outside their expected female role as well as for the crime itself (Heidensohn 1987). Locking punishment back into the crime ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Introduction
• 1. Man made punishment
• 2. From sex-specific to gender-responsive justice: opening up punishment to a feminist lens
• 3. Gender-responsive justice in action
• 4. Gender responsivity and the male gaze
• 5. Gender-responsive justice: critical appraisals
• 6. Gender-responsive justice: feminism and resistance
• Index