Feminist Perspectives on Criminal Law

Lois Bibbings, Donald Nicolson

• Publisher: Routledge-Cavendish
• Year: 2013
• eBook ISBN: 9781135343712
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Criminal law has traditionally been taught and analysed as if the gender of criminals and their victims is irrelevant. It has also been taught and analysed as if criminal law doctrine has no connection with questions of criminalisation, crime detection, decisions to charge and prosecute, lawyers trial tactics, decisions as to guilt and sentencing policy and practice, all of which are significantly affected by gender.This book seeks to fill these gaps by looking at the major areas in which gender affects the way that suspected criminals and their victims are treated by the criminal justice system. However, this book is not just a supplement to traditional criminal law discourse. It is a dangerous supplement, in that the focus on gender challenges laws claim to neutrality and even-handed justice.The essays in this book establish that, not only does the law frequently fail to offer women the sort of protection from male violence and sexual invasion that they need, but it continues to discriminate on grounds of gender. Even when discriminating in favour of women, it does so in ways that reinforce dangerous gender stereotypes. More specifically, both criminal law doctrine and criminal justice personnel apply and reinforce ideas, on the one hand, of female passivity, irrationality and proneness to illness, and, on the other, of natural male aggression - both physical and sexual.

CHAPTER 1
CRIMINAL LAW AND FEMINISM

Donald Nicolson

INTRODUCTION

Crime and society’s responses to it, like virtually all social phenomena, are heavily influenced by issues of gender. Gender distinctions are made in deciding what activities are criminal. Gender significantly affects who commits crimes and what crimes they commit. Those involved in enforcing the criminal law—the police, other enforcement agencies, prosecutors, juries and judges—are influenced by gender in deciding who might have committed crimes, who ought to be prosecuted, whether they are, in fact, guilty and how they should be punished. Gender stereotypes underlie the application and even the formulation of core criminal law concepts, such as actus reus, mens rea and the various defences to liability.

Yet, until relatively recently, the gender dimension to crime has been ignored. Traditionally, criminal law has been analysed and taught as if its rules are gender blind and as if the gender of both the victims and perpetrators of crimes is irrelevant to the way the law is applied. Even the fact that certain crimes can only be committed by one sex¹ or that certain defences are only available to one sex² has, in general, failed to evoke much critical discussion.

Only in the last 30 or so years have feminists begun to uncover the ‘maleness’ of criminal law and the way in which it frequently discriminates against women as defendants or fails to provide adequate protection against male violence and sexual abuse. In many cases, the feminist critique of specific areas of criminal law tied in with early analyses of law and patriarchy, focusing primarily on areas of obvious concern, such as rape and prostitution.³ Thus, it was revealed that, while rape was a widespread social phenomenon and an important element in patriarchal power, criminal law did little to protect women against one of the most invasive physical and psychological violations of their being. Prostitution was also an obvious subject for feminist attention. It represents an extreme instance of the extent to which many women are forced into their role as sexual objects because of their inferior socio-economic position and how they, but not their clients, are criminalised and punished by the law for doing so.

Later, a more sophisticated critique of criminal law developed when feminists discovered that even those areas of criminal law which are not directly based on sex differentiation (like prostitution law) or deal with issues of crucial importance to women (like rape law) are premised upon assumptions about gender. As a result, even when ostensibly gender-neutral, the formulation or actual application of criminal law may, in fact, discriminate against women defendants or, even when they do not, reinforce sexist stereotypes about appropriate female and male behaviour. Here, the primary topic of concern was domestic violence.⁴ Feminists began to realise that, not only did women faced with domestic violence gain little from a resort to criminal law, but that, when battered women themselves used violence in a desperate attempt to escape years of violence, fear, humiliation and degradation, they found it difficult to use criminal law defences which were based on paradigmatic male responses to violence.

Even more subtly, it was discovered that, behind the apparent gender neutrality of core criminal law concepts such as actus reus and mens rea, a complex process occurs whereby actors in the criminal justice system make different assumptions about male and female criminal behaviour. Thus, in her path-breaking book, Justice Unbalanced,⁵ Hilary Allen demonstrated how such actors concentrate on the external appearance of male criminal behaviour—on the assumption that it is rationally chosen—whereas with women, the focus is on their internal motivations—on the assumption that their criminality emanates from pathological states of mind. Allen’s work reflects a common theme in British feminist work on criminology and criminal justice, which proliferated from the 1970s.⁶ This work showed that female criminals are generally treated by the criminal justice system (and wider social discourse) in terms of two widely divergent stereotypes: as either mad or bad. What Allen thus illustrated was that, while the denial of rational agency to female defendants frequently worked to their advantage, it dangerously reinforced stereotypes of women as inherently irrational and passive and, hence, as disqualified from full legal and civic subjecthood.

Allen’s study also illustrated another important flaw in mainstream (or ‘malestream’, as many feminists would have it) criminal law discourse. This is its failure to recognise that criminal law cannot be treated solely in terms of the black letter rules that specify the conditions of criminal liability. One reason for this, as Allen shows, is that criminal law categories under-determine decisions as to liability, in that they leave much room for discretion as to whether a particular defendant’s behaviour fits with the tests for liability, the exercise of which is likely to be influenced by assumptions about male and female behaviour.

Another reason is that the likelihood of punishment for particular conduct depends on far more than categories of mens rea, actus reus and defences, etc. Criminal law needs to be understood as a much larger and more complex process, which includes myriad important decisions: by lawmakers (the courts as well as Parliament) as to what behaviour should be criminal and what aims should be pursued though punishment; by the police and other law enforcement officers as to who might have committed and who ought to be charged with offences (rather than merely cautioned); by criminal prosecutors as to whether these charges should be brought to court; by court litigators as to how to present their cases; by magistrates and juries as to whether defendants are guilty of the crimes charged; by sentencers as to how to punish convicted criminals; by prisons and other relevant authorities on how to treat convicted criminals and when to grant parole; and by probation officers. Also important are the rules of evidence, which might make it more or less difficult to prove criminal conduct. Clearly, as early feminist work on criminal law showed, these decisions and evidence law may have an equally, if not more important, effect on the treatment of those suspected of having committed crimes. And, equally clearly, gender assumptions play an influential role in the decisions of all actors in the criminal justice system and in the formulation of substantive offences, sentencing law and evidence law.

For these reasons, a focus on criminal law doctrine alone is likely to be misleading as to how suspected and convicted offenders are treated. Moreover, as Nicola Lacey argues in this book, such a focus is likely to create an unrealistic impression of the ease with which criminal law can be reformed to provide greater justice for women. As feminists have long recognised⁷ and as reforms to evidential rules affecting rape trials vividly illustrate,⁸ legal reforms are frequently undercut by the sexism of those involved in enforcing the new laws. In fact, according to Marie Fox’s chapter, feminists studying criminal law need to extend their gaze even further than the whole criminal justice process and consider the way that criminalisation and punishment intersect with other forms of social control, such as the family, welfare state and idealised notions of feminine beauty.

At present, the feminist critique of criminal law rules and its combination with the insights of criminology and criminal justice, let alone those of other disciplines, remains patchy in mainstream criminal law discourse. Admittedly, Lacey and Well’s Reconstructing Criminal Law⁹ adopts an explicitly feminist approach to criminal law.¹⁰ However, textbooks like Clarkson and Keating’s Criminal Law: Text and Materials¹¹ and Ashworth’s Principles of Criminal Law,¹² while being prepared to go beyond the traditional focus on black letter doctrine, only deal with gender on issues like rape and battered women who kill, where the feminist critique is so pressing as to make it difficult to avoid; although not so difficult that leading orthodox textbooks, like that of Smith and Hogan,¹³ continue to discuss criminal law as if gender plays no role in its formulation and application. Even a book as critical as Nome’s Crime, Reason and History¹⁴ relegates the gender dimension of criminal law to a few endnotes.

This book seeks to fill these gaps in criminal law discourse by providing, not only a supplement, but a ‘dangerous supplement’,¹⁵ in that it challenges criminal law’s supposed gender neutrality, if not (as Celia Wells argues in this volume) the supposed permanence of its very structures. Most obviously, it explores the gender dimension of criminal law rules, looking both at the general principles of criminal law (in Part II)—actus reus, mens rea, defences and accessorial liability—and a number of important specific offences (in Part III)—rape, non-fatal offences against the person and prostitution. However, in line with the argument that criminal law doctrine provides only a partial understanding of the law’s response to crime, Part I covers important aspects of the criminal justice process which crucially affect the treatment of those ensnared in criminal law’s web.¹⁶

However, while the book’s organisation reflects traditional criminal law categories, it is important to realise that a feminist perspective on criminal law reveals themes and concerns which cut across these categories. The aim of the rest of this chapter is to map those recurrent themes and concerns which emerge in this book and in feminist work on criminal law generally.

While many chapters in the book offer reform proposals and some suggest future directions for feminist research, most concentrate on criticising current criminal law rules and their application—perhaps unsurprisingly, given the relative novelty of feminist work on criminal law and the criminal process, and the law’s slow response to feminist concerns. These concerns can be said to take at least three forms. An early, but by no means outdated, criticism is that criminal law fails to provide women with adequate protection against male violence, rape and other forms of sexual abuse. Another obvious theme, which concentrates more on the position of women as perpetrators than victims of crime, involves an exploration of the extent to which criminal law doctrine and its application discriminates against women. Finally, and more recently, feminists have begun to analyse the ways in which criminal law itself constructs gender by communicating authoritative views about ‘natural’ and ‘appropriate’ male and female behaviour. It is to these three themes of ‘inadequate protection’, ‘gender discrimination’ and ‘gender construction’ we now turn.

CRIMINAL LAW’S INADEQUATE PROTECTION OF WOMEN

A number of areas of criminal law are open to censure for failing to provide women, not only with the special protection against male aggression they need, but even with law’s equal protection. Given that rape is primarily a crime directed by men at women and given that the law has only recently been extended to cover rape of men,¹⁷ it might be thought that the offence of rape was designed to provide special protection to women.¹⁸ Historically, however, the law appeared more concerned to protect women as the property of men—fathers or husbands—than women’s physical and emotional integrity, and their sexual autonomy. Accordingly, flowing from the value attached to female virginity and women as biological reproducers, rape was narrowly confined to penile penetration of the vagina and, at one stage, ejaculation was required. Similarly, rape within marriage was legal on the grounds that ‘by their matrimonial consent and contract, the wife hath given up herself in this kind unto her husband, which she cannot retract’.¹⁹

Jennifer Temkin’s chapter reveals that these restrictions on the protection provided by rape laws have now been removed. However, she argues that the legal boundaries to rape remain open to objection from a feminist perspective. Why, for instance, is forced fellatio or penetration by objects not regarded as rape? Why should the vitiation of consent by fraudulent deception be narrowly confined to a few, rare circumstances? Why should it be open to rapists to claim that they did not know or foresee that the women was not consenting, no matter how unreasonable and arrogant this belief? What this shows is that, while the law is meant to protect women, rape is defined from the perspective of men, if not the actual rapist himself. As Catharine MacKinnon succinctly puts it:’…women are…violated every day by men who have no idea of the meaning of their acts to women. To them, it is sex. Therefore, to the law, it is sex.’²⁰

This criticism is given additional force when one looks behind the legal definition of rape—narrow as it is—to how rape law actually applies in practice. Feminists have long been critical of the way that the attitudes of police, prosecutors, defence counsel, judges and juries further undermine the effectiveness of rape laws by implicitly or even explicitly relying on a series of myths and stereotypes about male and female sexuality, and the differences between consensual sex and rape. According to Alison Morris, for example, these include the following: ‘rape is impossible’ (if the women does not want sex); ‘women want to be raped’; ‘“no” means “yes”’; ‘“yes” to one, then “yes” to all’; ‘the victim was asking for it’; ‘rape is a cry for vengeance’; and ‘rape is a sexual act’.²¹ Consequently, rape victims have great difficulty in persuading police, prosecutors and courts that they were raped when, despite the equivalent level of harm, their experiences differ from social and legal constructions of ‘real’ rape,²² conceptualised as involving a stranger, late at night in an unlit locality and a victim who ferociously resists and has the injuries to prove it. These myths and stereotypes not only undermine the effectiveness of rape law, but have also led to a number of important rules of evidence which seriously obstruct the ability of rape complainants to obtain a fair hearing. Thus, in the past, judges were required to warn juries of convicting on uncorroborated evidence (justified on the notorious judicial assertion that ‘[i]t is well known that women in particular…are liable to be untruthful and invent stories’),²³ whereas defendants were given carte blanche to bring evidence of the complainant’s past sexual history into court and to cast imputations on her character, clothes, general sexual morality and behaviour at the time of the rape. In this light, it is not surprising that many rape v...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Foreword
• Series Editors’ Preface
• Contributors
• Acknowledgments
• Table of Cases
• Table of Legislation
• Table of Abbreviations
• Chapter 1 Criminal Law and Feminism
• Part I Gender, Crime and Punishment
• Part II General Principles of Criminal Liability
• Part III Specific Offences
• Bibliography