Women and Crime

S. K. Mukherjee, Jocelynne A. Scutt

• Publisher: Routledge
• Year: 2015
• eBook ISBN: 9781317287018
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

First published in 1981. In the last few decades, interest in the study of crimes by women has increased. This interest has coincided with the accelerated momentum of the feminist movement and has led to claims that a rising female crime rate is somehow linked with the changing status of women. But are women committing more crimes? And if so, can this be attributed to the impact of the women's movement?

In this book, nine essays survey aspects of the relationship between women and the criminal justice system. The contributors include historians, criminologists, lawyers, ex-prisoners and political scientists. Women and Crime will be of interest to students of criminology.

1 Sexism in Criminal Law

JOCELYNNE A. SCUTT

This humanity is male and man defines woman not in herself but as relative to him; she is not regarded as an autonomous being … She is defined and differentiated with reference to man and not he with reference to her; she is the incidental, the inessential as opposed to the essential. He is the Subject, he is the Absolute – she is the Other…¹

Women – as inhabitants of the criminal or non-criminal world – have been granted the right to adopt one, albeit schizophrenic, role: that of wife/mother and sex-object. The framing of Australian criminal laws, those designed to ‘protect’ women from ‘deviant’ acts and those designed to penalise us for our own deviance, serve to reinforce the stereotype.

Criminal laws have been drafted to perpetuate the dependency of women. Sometimes laws are framed to ‘personalise’ outlawed acts, seeing a psychological imbalance on the part of the woman as excusing or mitigating the offence. Some laws are designed in ignorance of basic inequalities existing between the sexes. Laws are thus unsatisfactory to women. The dependency approach refuses to acknowledge us as people, entitled to have control over our own activities and person. The psychological approach fails to confront social and economic factors vital to any explanation of ‘why’ women commit particular crimes. Laws framed without reference to basic inequalities effectively remove from women legal defences applicable to men.

Yet the law does an apparent volte face where women become victims of crime. Practices and procedures assume a responsibility in the woman that is denied her in other spheres. Her role as sex-object comes to the fore, the mythical male picture of woman as eternal temptress operating to deny women criminal law protection. However the liability deemed to exist in the woman-victim does not derive from any uprighteous dependability; rather, her guilt is predicated upon her irresponsibility: she invited the crime/flaunted her self/accepted a lift/accepted an invitation from the assailant. Thus, even where she is ‘responsible’ according to the law, that same law maintains for woman her well-played part of ‘foolish little girl’ or ‘wicked, wicked woman’. Her acts are not seen in their social context. She continues, by law and by aggressor, to be denied her autonomy.

The Law of Coverture

At common law it was originally held that by marriage:

… the husband and wife are one person in law, that is, the very being or legal existence of the wife is suspended during marriage, or at least is incorporated or consolidated into that of her husband; under whose wing, protection and care she performs everything…²

Under this doctrine it was considered at law that where a wife committed a crime in the presence of her husband, she was presumed to have committed it under coercion. The wife would therefore be entitled to an acquittal, if there was no evidence that she was principally instrumental in the commission of the crime; there was no requirement that the woman act under threats, pressure, or instructions from her husband.³ The presumption excluded the commission of treason or murder, and was limited to crimes amounting to felonies and indictable misdemeanours, but not extending to summary offences.⁴

Although this rule might be seen as favouring women over men, it is dangerous to accept such a simplistic interpretation. First, the presumption endorsed the idea that no married woman could be possessed of a will: her will was enveloped in that of her husband, and she was presumed not to be capable of acting independently of him. Thus in law a woman remained in a position akin to a child. At common law, a child under the age of eight years could not be held responsible for criminal acts: an irrebuttable presumption that he or she had no capacity to commit such acts precluded guilt; under fourteen years a rebuttable presumption existed to preclude guilt, unless it could be shown that the child in fact possessed sufficient intellect to know that it had committed the act in question and that the act in question was wrong.⁵

Second, the presumption operated only where she was in the strict physical presence of her husband: thus the implication was that all husbands should control (or should be capable of controlling) their wives. Furthermore, if this notion did not survive, then a wife committing a crime jointly with her husband would be subjected to a more severe penalty: where capital punishment existed in relation to felonies, the husband was entitled to benefit of clergy.⁶ This would operate to render him liable to a light punishment only. The wife, however, was not entitled to benefit of clergy and could have been put to death.⁷

Thus in law, by reason of coverture, a woman had no power of self-determination as to whether she wished to act within the law or outside it. Just as she had no right to sign a contract in her own name, nor to own real property, nor to decide where she should make her home⁸, a married woman was presumed to be incapable of determining independently that she would act in committing a crime.

Today in most jurisdictions the defence of marital coercion has been dispensed with or is subject to moves for repeal.⁹ Yet it is instructive to look at the rationale surrounding its abolition. The passage of legislation in Canada, New Zealand, the United Kingdom and each of the Australian States has eliminated the presumption.¹⁰ Generally it is now provided that:

Any presumption of law that an offence committed by a wife in the presence of her husband is hereby abolished, but on a charge against a wife for any offence, other than treason or murder, it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.¹¹

Adopted in support of this amendment is the statement of Frankfurter J. in the United States case of U.S. v. Dege:¹²

For this court now to act on Hawkins’ [Pleas of the Crown] formulation of the medieval view that husband and wife ‘are esteemed but as one Person in Law, and are presumed to have but one Will’ would indeed be ‘blind imitation of the past’. It would require us to disregard the various changes in the status of woman – the extension of her rights and correlative duties – whereby a wife’s legal submission to her husband has been wholly wiped out, not only in the English-speaking world generally, but emphatically so in this country.¹³

Thus a woman is today rendered at law capable of directing her own criminal acts. However in true perversity, although the law recognises ‘a wife’s legal submission to her husband’ as being ‘wholly wiped out’ in relation to marital coercion, on another level marital coercion is presumed to continue to exist: in domestic rape. Where a man rapes his wife, most criminal lawyers adhere to the view that he cannot be prosecuted for the crime. The view more ancient than that of Hawkins holds sway – that ‘by her matrimonial consent the wife hath given up herself in this kind unto the husband’.¹⁴ Although the law is prepared to find responsibility in a wife for forming an evil intention, it refuses to recognise her simple ability to consent or refuse to consent to sexual intercourse, adopting the 17th century view of Sir Matthew Hale.¹⁵

Prostitution and the Law

The law of prostitution also plays a double game with women. On one level, women are held responsible: thus most laws are framed to deal only with women prostitutes, precluding the idea that men may trade their bodies. Further, the laws regard only as criminal the woman who solicits to engage in sexual intercourse for money – those men who solicit to engage in sexual intercourse for which they pay are not normally included.¹⁶ On a second level, women-as-prostitutes are irresponsible. They are taken to be incapable of managing their ill-got incomes: they are effectively precluded by law from deploying their funds in keeping a house-husband or other companion.

In New South Wales in 1977, 2,075 prosecutions for the offence of loitering/soliciting for the purpose of prostitution were launched. Of these, the majority (1,871, or 90.2 per cent) resulted in a fine; two (0.1 per cent) in findings of not guilty; three (0.1 per cent) in imprisonment.¹⁷ The law under which women were prosecuted was the Summary Offences Act (N.S.W.) 1970, which provided that it is an offence for a woman to solicit or loiter in, near, or within view from a public place, for the purposes of prostitution. This type of law is allegedly founded upon principles stated in the Report of the Wolfenden Committee, commencing with the idea that the criminal law is ‘… not concerned with private morals or with ethical sanctions’. The law in this area is concerned:

… not with prostitution itself but with the manner in which the activity of prostitutes and those associated with them offend against public order and decency, expose the ordinary citizen to what is offensive or involve the exploitation of others…¹⁸

Futhermore, the Committee said:

In this field, [the] function [of the law] is to preserve public order and decency, to protect the citizen from what is offensive and injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because they are young, weak in mind or body, inexperienced or in a state of special physical, official or economic dependence.¹⁹

Yet is the law designed to fulfil the stated need? In each Australian jurisdiction in 1978, no man was arrested and prosecuted for approaching a woman and suggesting that she engage in sexual intercourse with him for payment of a fee. Some jurisdictions²⁰ hold customers liable, but this is not so in Australia. Under the similar United Kingdom law²¹, a man who was prosecuted for soliciting where he had been ‘kerb crawling’ and suggesting to various known prostitutes that they join him, was held not to come within the terms of the provision; he was not engaged in an ‘immoral purpose’ in terms of the section. The court said that although the words ‘immoral purpose’ in their ordinary meaning connote ‘a wide and general sense’ and involve ‘… all purposes involving conduct which has the property of being wrong rather than right in the judgment of the ordinary contemporary citizen’ within the context of the statute, the words could not be taken at their ordinary meaning but must ‘… be limited, at least, to a sexual purpose’.²² Thus the court concluded that a man who kerb-crawls to select a prostitute is not engaged in a ‘se...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Title Page
• Original Copyright Page
• Table of Contents
• Acknowledgements
• Introduction
• 1. Sexism in Criminal Law
• 2. Hidden from History: Women Victims of Crime
• 3. Women, Crime and Punishment
• 4. The Mythinterpretation of Female Crime
• 5. Theorizing About Female Crime
• 6. The Processing of Juveniles in Victoria
• 7. The Myth of Rising Female Crime
• 8. Women in Constraints
• 9. Prisons, Prisoners and the Community
• Index