“Criminal women as more victims than aggressors, more sinned against than sinning, more to be pitied than blamed”: An Analysis of This Statement in Modern Society

Introduction

Throughout history, women and crime have not been studied together to the extent of men and crime. While it is true that the number of convicted women is significantly lower than that of males for all ages, the study of women who commit crime is still necessary.[1] In the past, the various theories of crime (Strain, Chicago, etc.) were studied from a male offending perspective only.[2] The emergence of second wave feminism has now sought to make women visible in the criminal justice system.[3] In 1987, Hilary Allen stated that “the courts have a predisposition to view women as victims, more sinned against and more to be pitied”.[4]

This article will discuss how this statement is still true in courts today, while also discussing situations when this type of treatment could be justified. The current situation of sentencing men and women will be considered, while also discussing mitigating factors for women offenders and the ‘double deviance’ theory.

Current Situation for Women in the Criminal Justice System 

While Hilary Allen made the above statement in 1987, there is still preferential treatment for women in the criminal justice system in today’s society. Some examples of this are women being more likely to receive a cautioning, more likely to be released on bail during proceedings, more likely to receive a community sentence, and more likely to be discharged.[5] There is a ‘chivalry thesis’ that suggests that the criminal justice system takes a protective and patriarchal view of female offending.[6] This implies that when women enter the criminal justice system, the instinct is that they need protecting by the system and, therefore, should receive a lesser sentence. Based on evidence gathered in the United States, there are consistent findings of more lenient sentences for women.[7] Women are thought to be less dangerous, less blameworthy, less likely to reoffend and more likely to be deterred.[8] Therefore, the more lenient sentences may reflect a belief among judges that women possess these qualities more than men would.[9]  

Mitigating Factors

A reason for this preferential treatment is that the courts regard women as having more mitigating factors than men when it comes to sentencing. Such factors include having “less dangerous” qualities, having children at home and/or being a wife, and having more sympathy in instances of infanticide.[10] Research has suggested that women commit different types of offences and have lower levels of violence, thus posing less of a threat to society.[11] They are less likely to have criminal histories and have committed a more narrow range of offenses.[12] Furthermore, research indicated that females have a higher rate of personality disorders, psychosis, addiction problems, learning disabilities, self-harm, PTSD, and are more likely to be victims of abuse as children.[13]  

It can be argued that, based on the facts above, there are more mitigating factors that come into play when sentencing women. These are generalisations and do not apply to all women, but it does commonly occur. If an individual presents in court with some of these factual mitigating factors, then being treated preferentially could be warranted. For example, if a woman presents in court with no criminal history for a non-violent offence and has severe PTSD, it may be challenging to advocate that she should receive a harsh sentence.

Even though women tend to have more mitigating factors than men, it was stated in a study in the UK that when investigating instances where men and women committed the same offence and had the same mitigating factors, men are still twice as likely to receive a custodial sentence.[14] The same conclusion was reached in research done in the United States; women tend to commit less violent and serious crime but in the instances where the crime is exactly the same, women still tend to be treated more favourably.[15] Therefore, it could be concluded that even with the higher number of mitigating factors for women, the sentences for men are still higher. It is less likely that men will have the same mitigating factors present but, when they do, they are still likely to receive harsher treatment.

Double Deviance

There is another argument that women actually receive less preferential treatment from the courts for certain offences that transcend gender stereotypes, such as violent offences. It has been suggested that this is because of a belief that women offenders have breached sacred notions of what is deemed to be truly female.[16] A criminal woman is treated as having committed two crimes; the first is her criminal offence and the second is her deviance from gender stereotypes. This is known as the double deviance theory.[17] Women who fit into this theory are seen as doing two things wrong. Therefore, they are doubly deviant and should receive harsher treatment.[18] Carol Smart argues that violence perpetrated by men is typically viewed as a rational alternative to structural conditions, whereas violence perpetrated by women is viewed as irrational.[19] Therefore, when women are aggressive they may be labelled as evil, mentally ill, or victims.[20]

In a study done in the UK, it was found that men are twice as likely to receive a custodial sentence than women, with the widest disparities in assault offences.[21] There is an assertion that this reputes the double deviance theory.[22] This would mean that, even in violent crimes when women supposedly transcend gender norms, men are still twice as likely to receive a custodial sentence. With this evidence, it seems the double deviance theory works more to explain why women are given lesser sentences.

The double deviance attitude may prompt the courts treat women more as mentally ill, victims and in need of help. There may be an assumption that because a women committed a violent offence, there must be something wrong with her. This implies that women could never commit violent acts based off their own free will. Based on research outlined above, it seems that women are commonly given lighter sentences, even in the typical “male crimes”.   

Conclusion

Women commonly have more mitigating factors than men do, so preferential treatment of them is seen as warranted at times. However, studies in the UK and the United States indicate that even in instances when men have the same mitigating factors present, men are still treated harsher in the criminal justice system. The mitigating factors that many women have when involved in the criminal justice system are important and should always be considered. However, differential treatment for women is a positive only if the justifiable mitigating factors are indeed present. Based on the analysis in this article, it is clear that Hilary Allen’s statement from 1987 is still true in modern society. Society as a whole has changed drastically since that time. However, it is clear that the bias to view “criminal women as more victims than aggressors, more sinned against than sinning, more to be pitied than blamed” still holds true.

 

[1] Tim Newburn, Criminology (3rd edn, Taylor & Frances Group 2017) 870

[2] Tim Newburn, Criminology (3rd edn, Taylor & Frances Group 2017) 871

[3] Business Bliss Consultants FZE, ‘Second Wave Feminist Perspectives on the Treatment of Women in the Criminal Justice System: 1960-1990’ (UKDiss, 9 January 2019) <https://ukdiss.com/examples/second-wave-feminist-women-cjs.php?vref=1> accessed 21 March 2023

[4] Hilary Allen, ‘Justice Unbalanced: Gender, Psychiatry and Judicial Decisions’ (1987) 18(2) Journal of Social Policy 154

[5] Tim Newburn, Criminology (3rd edn, Taylor & Frances Group 2017) 874

[6] Tim Newburn, Criminology (3rd edn, Taylor & Frances Group 2017) 881

[7] Jill Doerner and Stephen Demuth, ‘Gender and Sentencing in the Federal Courts: Are Women Treated More Leniently?’ (2014) 25(2) Criminal Justice Policy Review 242, 245

[8] Jill Doerner and Stephen Demuth, ‘Gender and Sentencing in the Federal Courts: Are Women Treated More Leniently?’ (2014) 25(2) Criminal Justice Policy Review 242, 246

[9] Ibid

[10] Jill Doerner and Stephen Demuth, ‘Gender and Sentencing in the Federal Courts: Are Women Treated More Leniently?’ (2014) 25(2) Criminal Justice Policy Review 242, 246

[11] Janice Kelly and John Bogue, ‘Gender Differences in Criminogenic Needs Among Irish Offenders’ (2014) 11 Irish Probation Journal 87, 89

[12] Ibid

[13] Ibid

[14] Jose Pina-Sanchez and Lyndon Harris, ‘Sentencing Gender? Investigating the Presence of Gender Disparities in Crown Court Sentences’ (2020) 1 Criminal Law Review 3, 13

[15] Jill Doerner and Stephen Demuth, ‘Gender and Sentencing in the Federal Courts: Are Women Treated More Leniently?’ (2014) 25(2) Criminal Justice Policy Review 242, 246

[16] Harrier Burgess, ‘The Framing of the Shrew: A Study of the Sexualisation of the Female Criminal’ (2014) 17(1) Trinity College Law Review 165, 165

[17] Harrier Burgess, ‘The Framing of the Shrew: A Study of the Sexualisation of the Female Criminal’ (2014) 17(1) Trinity College Law Review 165, 166

[18] Kieran Malon, ‘Gender Differences and Sentencing: A Critical Literature Review’ (University of Hull 2020)

[19] Lynsey Black, ‘Paper Women: The Representation of Female Offenders in Irish Newspapers’ (Technological University Dublin 2009)

[20] Ibid

[21] Jose Pina-Sanchez and Lyndon Harris, ‘Sentencing Gender? Investigating the Presence of Gender Disparities in Crown Court Sentences’ (2020) 1 Criminal Law Review 3, 13

[22] Ibid