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Feminism: Women in the Criminal Justice System

For a long period in history women and girls were largely seen as victims in the judicial system. It was not until the late 1970’s that the criminal justice system began to raise greater awareness around women as criminals. When looking at official criminal statistics (Radzinowicz, 1937)[1] women have historically appeared to have a lower rate of participation in deviant activities.  This is partially because there is a tendency for women to conform to social order, and therefore accounts of deviance among women has remained lower than men over time. Accounts from the early 20thcentury suggested that women who deviated from the expected ‘role of women’ were viewed by society as morally corrupt, hysterical, diseased, manipulative, and devious (Glueck & Glueck, 1934).[2]

Because women have been more commonly portrayed as victims of crime in the judicial system it has caused stigma in that women are seen as simply that, victims of crime. The treatment of women in our judicial system is something rarely discussed but a relevant issue to feminists across the globe. Most recently this issue was made public by the trial of a 17 year-old rape victim in Ireland where the 27 year-old attacker was acquitted after his defence lawyer used the young girl’s thong as evidence that she was ‘asking for it’ during the trial (New York Times, 2018)[3].

Women as victims of crime

Historically women were more often than not seen as victims of crime and rarely portrayed as perpetrators. Although it is a fact that women are more often victims, there has been little done in regards to their equal treatment within the justice system. Portraying a woman as a victim potentially demeans the image of women. This in fact perpetuates the image of a victim being a young, poor woman.This image or stereotype has led feminist thinkers to take a stand when it comes to women in the justice system.

Victims have always been secondary when it comes to crime and criminal behaviour, and in particular what we do about these incidents. Historically there was no recourse for victims of interpersonal crimes. Today, it seems that victims are offered more options, yet the limitations are still present and often jarring. For example, in order to receive compensation from provincial and federal governments there are many steps and hoops one must jump through.  These steps include reporting the crime and cooperating with the police investigation, which may seem like easy tasks.  However, the shame associated with becoming a victim cannot be underestimated. As such, hundreds of crimes go unreported, especially those related to sexual assault.

Canada’s laws surrounding women’s rights have advanced significantly since the late 20thcentury; nonetheless, we still have a long way to go.  Every day cases of human trafficking of women, sexual assault, and even murder of women in prostitution, juvenile prostitution, as well as domestic violence are taken to criminal court.

The first major advancement in this area came in 1983 with an update to the criminal code regarding rape. This change classified rape as a sexual assault and not a crime against a person’s reputation. This shifted the emphasis from sex to the violence occurring during the assault. The addition of the rape-shield prevision allowed for victims to not be questioned about their sexual history, adding a layer of protection for those who speak up about their assault. The passing of Bill C-49 was another important accomplishment, as it defined consent and situations with no consent, as well as limited the admissibility of evidence.

Despite these regulations being in place, there are still countless loopholes. In the notorious 2003 Kobe Bryant trial, rape shield laws were disregarded entirely in order to discredit the complainant’s credibility[4]. Even though this case occurred in the United States its repercussions crossed borders, thus creating a feminist movement for equal treatment in legal systems.  The incident mentioned earlier about a 17 year-old Irish girl who was brutally raped by a 27 year-old man struck up and even larger feminist movement - the #thisisnotconsent movement. Both of these cases display how women are treated and unjustly in the criminal justice system, and speak to the fact that something must change.[3]

Women as perpetrators of crime

When women are looked at as perpetrators of crime they are described pathologically as being either mad (insane) or bad or both. Female criminality has been medicalized to the point where there is now a learned helplessness surrounding crimes committed by women. Defenses like Battered Women Syndrome (BWS) and the PMS defense leave out the social context of the crime, and ignore how the perpetrator got to that point by focusing solely on the psychological phenomena[5].

Because women are socialized to be caregiving they are known to have ethical responsibilities.  Therefore, when a woman commits a crime, she must be mad or bad. Many violent crimes committed by women stem from their own experience of trauma, abuse, assault, or other forms of violence. This traumatic experience they’ve lived through is often difficult to process or heal from, as such to name their out lashing criminal behaviour to insanity, or by using the previously mentioned defences of BWS and PMS, seems to miss the larger sociological issue at hand.

There are major concerns in using the BWS or the PSM defence. First, it is ultimately an excuse, rather than a justification of the offense. Excusing the offence stigmatizes women who use the temporary insanity defence. Also, it excludes women who are determined to be rational at the time of the offence from using BWS as a part of their legal defense. Many feminists believe that this defence creates limitations for the women using it, for the actions of women who kill their abusers are normative and even altruistic at times. The use of BWS as a justification for temporary insanity is another issue that arises, further adding to the idea that women who commit crime are ‘mad’ and fulfilling societies stereotypes of women in such cases being ‘crazy.’

The belief that law, crime control, and criminal justice are neutral institutions has lead to society believing that there is no sexism and injustice towards women in our court systems. However, when analyzing the systems it becomes clear that the patriarchal constructions within our society have allowed for these systems to be set up to help men succeed and actively diminish women. This has had, and continues to have, a significant effect in making these experiences nearly invisible to lawmakers, the courts, the police, and the public thus discriminating against women.

Our society seems to be socially, politically, and economically structured to marginalize and invisibilizes women.  Therefore, when women commit crimes it is often pushed down to being an individual, psychological issue. Increasing focus on the social conditions and marginalization that produce the trauma that leads to these acts will increase awareness and allow for more equal treatment in the judicial system. The portrayal of women as being mad or insane omits the fact that she may be reasonable, and this only adds to our society’s jaded views of women as being unreasonable, crazy, and moody.

I would like to end by highlighting to cases of women sentence for their crimes where the focus was on the incident rather than the circumstances that led to the violent crimes. Yvonne Johnson, an Aboriginal woman, grew up in the 1970s experiencing repeated rape and abuse from fathers, brothers, acquaintances, police officers, and strangers (Wiebe & Johnson, 1999)[6]. These early triggers and stressors eventually lead Johnson to participating in the murder and sexual abuse of Leonard Skwarok. The triggering of this crime was that Skwarok was believed to be a child abuser.

  1. Radzinowicz, L (1937). Variability of the sex-ratio of criminality. The Sociological Review,.CS1 maint: extra punctuation (link)
  2. Glueck, S., & Glueck, E. T. (1934). Five hundred delinquent women. New York: American Book Co.CS1 maint: multiple names: authors list (link)
  3. 3.0 3.1 Safronova, Valeriya (Nov. 15, 2018). "Lawyer in Rape Trial Links Thong With Consent, and Ireland Erupts". New York Times. Check date values in: |date= (help)
  4. Sheehy, Elizabeth A. (2012). Sexual Assault in Canada : Law, Legal Practice and Women’s Activism. University of Ottawa Press.
  5. Winterdyk, John (2016). Canadian Criminology. Oxford University press.
  6. Wiebe, R., & Johnson, Y (1999). Stolen life: The journey of a Cree woman. Vintage Books Canada.CS1 maint: multiple names: authors list (link)