Women have been striving for equal treatment for a long time and in some ways, women are receiving equal treatment in the criminal justice system--to their detriment. The criminal justice system seems ill-equipped to deal with women and the issues that concern them. Women are still seen as "other" or "abnormal" in the criminal justice system. To deal with females who have offended, policies and programs used for men are being applied to women without recognizing that women have different needs and concerns. And to deal with the claims that women receive beneficial treatment, gender-neutral policies are being applied, which ironically are putting a lot of women into prison. Although it may be that women are sentenced to prison less frequently than men, more female offenders are likely to be incarcerated now than at any other time in U.S. history. When it comes to issues of female offenses, gender-neutral merely means that models used for men are being applied to women without any gender sensitivity. These policies fail to look at the reality of women's lives or the contexts in which women offend. For example, if we look at issues of domestic violence, we find that often now both women and men are arrested when a call is made to the police. Although there are many reasons this policy was put into effect, in a way it is punishing women who are victims of violence. Also, when battered women kill, often times they are convicted of the crime and sentenced to many years in prison, despite the stereotype that many of these women are acquitted. One of the reasons for this is because of the lack of awareness about battered women and a lack of gender sensitivity in the criminal justice system. Compared to the understanding of male offenses and reasons for offending, there is an immense lack of understanding about female offending. Beliefs such as the women should have just left, or that women are just as violent as men, or that the women on trial should fit the stereotype of a "real battered woman" are harmful misconceptions that jurors, lawyers, and judges often hold.
Some people argue that although gender neutral policies may hurt women in the short run, in the long run, it is the only way that women will be treated equally in economic and social fields.Others argue that using a male standard to apply to both males and females does not mean equal treatment and that rather than gender-neutral policies, gender-sensitive policies must be implemented.
Should justice be gender blind?
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When looking at the issue of domestic violence I am always caught between the son and brother who knows never to hit a woman, and the boyfriend who’s seen the strength in women, who I could never see allowing that to happen. Putting aside the familial structure, I think that domestic violence, as any other violence we allow to be inflicted on us, is induced by its depiction in society. It is Similar to some of the violent practices of our criminal justice system, the violence of slavery and genocide, and even the violence of drug abuse on the body of the recovering addict. All these types of violence flourish when people aren’t living with the acceptance that this happened to them. The offender coming home to a place he’s somewhat less a part of, the slaves not understanding how this could happen to them but, even worse how some one could do this, and the addict who cant kick the habit because of the stigma which surrounds him. Dehumanization comes before, during, and after acts of violence. Women who’ve faced domestic violence feel all of these things. They too also ask themselves, what will people think, and how could he have done this? These thoughts are followed by the feeling of marginalization from those who are there to “help” but, are really offending them with their “equal treatment”, “equal treatment” to whom? Who in society is equally being treated as a cripple? No one I know wants to feel weak and helpless. Women are sometimes only being further crippled and the majority of them rightfully don’t like it.
The history of violence shows that it can’t be undone by the complete opposite of the act it’s self. Therefore the efforts to perform some type of “affirmative action”, whether it be a woman’s right to be nursed back to the “strong woman” society depicts them as, or the women’s equal right to be imprisoned? If “ill equipped” is referring to the “systems” interest in strengthening human character, in this case the woman, then yes they are ill equipped but, what’s the alternative? Should we have a shooting range and self defense classes at shelters shouting “Never Again”, or should we find a way of making societies issues more approachable? No, Justice shouldn’t be gender blind.
Are these the consequences of extreme feminist riots however? What are the underlying factors that contributed to this “equal treatment under law of the sexes?” As if all of the sudden the closing gap of the discrepancies between the rate of male and female incarcerations is a positive thing! What are the reasons more women are being incarcerated and these figures catching up to men? Is it a change in social views and perspectives? Perhaps it’s the aftermath of the”drug war” where females became addicted and resorted to prostitution to sustain their addiction- criminal activities that invite them to the criminal justice cycle and stacking statistical figures, As can be seen in the the study conducted by Marc Mauer, Cathy Potler and Richard Wolf, titled “Gender and Justice Women, drugs, and sentencing policy (nov 1999).
Perhaps it’s women like Usha Narayane and Sunitha Krishnan (in Amanda’s reading for this thursday)who when “empowering” women to stand up for themselves and stop the abuse cause chaos and more violence which add to women getting locked up. Its a positive progression I agree. But it just seems that (and perhaps it’s only superficial) that women want equal treatment and once they receive it they want special treatment for being a women? So more women being incarcerated at a comparable rate to men equals more socio economic equality for women? And I know there are other issues to consider, special circumstances around the type of crimes women commit against the crimes men commit, but essentially, crimes are being committed, and putting them in prison is not helping, it is not rehabilitating, it destroys humans most important institution: the family...Father and mothers are not present and which only breeds more violence and destruction in our youths and a bleak future (yes Vaughn’s readings impacted me as well)
Should justice be gender blind? Well that depends on the agenda. What is the goal? again do we want equality economically and socially and yet still be able to argue as Professor Stein stated that the physical difference between a man and a woman is an important factor that needs to be remembered in court, that he can cause a lot more damage than she possibly can... still request to be respected and treated as a women? (what does that even mean?) Or do women want to have the right, the option to be able to walk around topless just like men? But no... I hope justice is never gender blind, that is absurd.... and a complete reversal of humanity.
This gender issue is like a double edged sword, if you want equality you have to b e able to deal with the best and worst of it. However, the fact is that women are still marginalized. In fact not only is equality within the law an issue, but imagine also the issues of race, sex, and class in justice. We can say justice is blind, but is it really? I have been reading for my philosophy 423 (Topics in Justice) class on Feminism and the triple jeopardy that black women face. Not only are minority women marginalized because of their sex, but they are discriminated by both their race and class (unless you are the few luck rich then you only have to problems to face). We want equality the best of it, and I think that having just as harsh or harsher punishments are detrimental towards the cause of equality. In other words, how can women get past their single, double, or triple issues of discrimination if they are not viewed as a targeted and usually victimized group? I am not saying we have to think of the stereotypical view that women are weak, but think about a woman and man getting arrested for Domestic violence, who does more damage? I think it goes back to empathy within the court room. You have to come up with a plausible decision that we become a deterrent towards crime, not a continuous cycle. I am not sure if I am explaining myself clearly ( I have million thoughts going around my head) but here is an excerpt of the introduction to Words of Fire.
Words of Fire: An Anthology of African-American Feminist thought;
“While black feminism is not a monolithic, static ideology, and there is considerable diversity among African American feminists, certain premises are constant: 1.) Black women experience a special kind of oppression and suffering in this country which is racist, sexist, and classist because of their dual racial and gender identity and their limited access to economic resources; 2.) This “triple jeopardy” has meant that the problems, concerns and needs of black women are different in many ways from those of both white women and black men; 3.) Black women must struggle for black liberation and gender equality simultaneous; 4.) There is no inherent contradiction in the struggle to eradicate sexism and racism as well as the other “isms” which plague the human community, such as classism and heterosexism; 5.) Black women’s commitment to the liberation of blacks and women is profoundly rooted in their lived experience“ (p 2).
Hold on – what kind of justice are we talking about? Justice within the law or personal opinions within our society?
While I agree that certain types of “murder” should not be considered “murder” but “self-defense,” I do not believe we should start writing into law the psychological diagnoses of a particular gender (i.e. battered woman syndrome) or expect the law to bring justice in a way that nurses us back to normalcy or “empowerment.” My reason for this (and my greatest problem with having justice be gender blind) is that the law is meant to be based on a person’s intent and the severity of the crime, with situational factors guiding jurors to perceive the defendant more harshly, called aggravating factors, or more sympathetically called mitigating factors.” It’s people’s biases we need to be taking care of when we’re talking about justice. When a psychologist comes in talking about “battered woman’s syndrome,” it’s up to the jurors weigh the life-threatening situation of the woman and the lives of their children, and understand how this could lead to murder. Jurors need to understand the psychology of it better. Furthermore, jurors need to have a better understanding of the law, or we need to get better at creating sentencing policies. If self-defense means that the danger was pre-eminent (e.g. the man was in front of his wife, telling her this beating was going to be her last) –a husband who was sleeping before his abused wife stabbed him couldn’t have been a preeminent danger - but jurors understanding of mitigating factors (his beatings, threats) should cause them to judge her more humanely than sentencing her to prison. Certainly sentencing her to a specialized psychological therapy would be more justified – just like we do for drug offenders. Policies in other countries convict any woman who murders her child in the first 12 months post delivery of manslaughter because of her “hormone levels drop so precipitously after childbirth.” These blanket policies are no good to make men and women more equal. Justice delivered case by case will deliver sentences which support equal treatment between men and women, and other times deliver special treatment to women – its always going to be gender blind sometimes.
Yes, equality is an important factor in all aspects. For example, one should never be turned away form a job due to their race or gender. But when it comes to justice, I don't believe that it should ever be gender blind. As Professor Stein mentioned in class about the damage that a man can do on a woman is far different from the damage that a woman can do on a man. Because women have been fighting for equality for so long, when a woman is being punished for a crime they don't want to be seen as treating one situation differently than the other. We all know that mitigating factors are always the key to discovering the severity of a crime but gender should also be considered (but not the decisive factor) in deciding on the penalty.
I've always wondered why it was so hard for some people to leave their abusive relationships until it happened to someone I knew. I provided her with all the agencies that she could contact for help and I even offered a place for her to stay. She eventually was not able to leave because she was not strong enough and the thought of being alone frightened her. For someone that wants to leave an abusive relationship, they need to know all their options of where they can reach out for help but the most important factor is having the will power to actually get up and leave.
I agree with Danielle, I don't think that the law should be gender sensitive. I know that it is unfair that many times in domestic violence disputes both the man and the woman are arrested. When I listen to stories like this at the shelter, I get upset at the officers. How can they arrest both for DV when the woman clearly is the most harmed? Do they not see it, or do they simply not care? I believe that they do it to protect both parties. I mean we can't always assumed that the woman is the victim and the man the offender. If we start treating women differently in court then we will promote the view that women need extra protection in society.
The law should be gender blind to ensure justice, although I am aware that policies which criminalize behavior may not be gender neutral, I still believe we should try to aim for fairness. We should focus more on why and who is drafting this laws that criminalize people, and then focus on then punishment of individuals.
Education of jurors, attorneys, judges, and society is the key to stopping unfairness against women. If these people empathize with the accused then maybe they'll be able to understand better their actions and not punish as harshly. However, this technique should be used for both males and females.
So basically, if both women and men get arrested for a domestic violence case then that translates as gender neutral or blind? I think that women should have be arrested when they have been beat, but it makes sense that they are arrested because they still need to go in for an investigation. It is not fair to always make the women the victim and the man the offender. That is when police discretion comes into place (which is a whole other mess in and of itself). Essentially it is up to the officer to decide whether to take them both or to see a victim and allow him or her to stay home. I agree with Danielle, it ought to be on a case by case basis. I thin k we need to make a clear distinction between a policing process to be neutral (or I guess policies as we have been calling them so far) and neutrality within the courts. I don’t know if that is possible. Instead of blanket policies and generalizations, we need a case by case application.
This is an important conversation. Thanks, Neethu, for your post and for the thoughtful comments. I'm writing this from Panera because I'm going on day 5 without power and it is amusing to be reflecting on issues of women and power when I'm so clearly a woman without power.
I appreciate the insight of Danielle's comment: we need to think carefully about the different contexts in which the very important issue of equality comes up. It feels right to say that we believe in equality for all, but that looks very different in different contexts, such as legal treatment, policing, physical strength/physiology (those vaunted hormones), economic opportunities, etc.
This question comes up a great deal in my course on female detective fiction. Female detectives are often the ultimate add-and-stir figure (to refer to Neethu's title). The argument seems to be all about whether or not they can be equal to the male detective and successful detective fiction writers seem to follow this pretty closely. Just put Phillip Marlowe or Sam Spade in a skirt and you have most of the female detectives in popular fiction/television today. What gets less attention, and what is on my mind after reading the comments, is what gets left out when we look for equality. For example, one of the things that seems different, and arguably better, about female crime-fighters is a capacity for collaborative work, for a heightened sensitivity about exactly such factors as race, class, ethnicity when it comes to justice. (I'm reminded of Sotomayor's "wise Latina woman" comment here.) My hope for feminism always is not that women just can do the same things men have been able to do but that the often unique strengths and contributions of women -- often quite different from those of men -- can be valued and set free.
This has surely been one of the most thought provoking blogs I have seen this semester. A number of you, in answering the question about justice and gender neutrality, have cited the need for greater police and judicial discretion in the criminal justice process although Marling, in her second post, remembers “what a mess” that can lead to.
Interestingly, the move to narrow discretion in both arrest and sentencing came about because it seemed to augur an end to discrimination. In the case of domestic violence, mandatory arrest became the norm after Lawrence Sherman’s work in the 1980s originally demonstrated its efficacy in reducing violence. Unfortunately, when his experiments were repeated in neighborhoods of varying socio-economic class, the results were very different. The original samples, in middle class neighborhoods, had shown that arrest was a meaningful punishment for men who worried about losing their jobs, and social status. Repeated in poor neighborhoods, with high rates of unemployment and men with previous criminal records, arrest-if anything-made it more likely that women would be victimized, because it made the batterer angry. But the gung-ho movement for less police discretion remained.
Similarly, discretion has been taken away from judges who, as Danielle points out, are just supposed to apply the law as it regards a particular crime. She gives the example of a battered woman who kills her abuser, and the need to ascertain the imminence of the threat toward her, if she is claiming self-defense. Women almost always lose these cases because they do kill the man when he is drunk, asleep, or otherwise incapacitated so, at least superficially, the threat cannot be imminent. (Proponents of the defense point out that a woman in such circumstances-like a prisoner of war-can only escape if she kills her captor, and can only kill her captor when he is incapacitated-otherwise he will kill her.) Judges generally follow sentencing guidelines that do not bend much for these convicted murderesses.
I don’t have an answer at all. Justice, I guess, should be blind. But how can we make sure it is not deaf and dumb, as well?
Like Professor Reitz, I am also a woman without power—haven’t had it since last Saturday despite multiple pleas to Con Ed customer service. Aaarrghh!
As for the subject at hand, I am curious and don’t have the answers to the following question related to domestic violence: under what social conditions are there greater or fewer instances of domestic violence? I don’t know if such a statistic even exists. I would hypothesize that under degrading and dehumanizing social conditions (marked by multiple exclusions) where people are frustrated in their ability to fulfill their own potential (whatever that may be), the incidence of domestic violence rises. If this is true, our energies might be directed to changing the conditions that give rise to the violence we see on the ground (in the household).
We always seem to discuss the aftermaths of things—in this case, the aftermaths of violence between intimates and how the courts should or should not deal with women. But what can we do “before” to prevent these incidents from occurring? Is there nothing to be done? Do we just chalk it up to another “unsolvable problem” so it doesn’t even get put it on the agenda?? How do we know all the “unsolvable problems” are really unsolvable unless we try to address “the before”? Is there another reason we don’t discuss prevention? (By “we” I don’t mean just us in our seminar but so many others concerned with these social issues).
Gender inequalities are difficult to discuss because many times discussions become a battle of the sexes sort of situation where each party (Female/Male) is concerned with being the “correct” party. There is no question that discrimination takes place on a basis of gender. I agree with Lisa when she says no one should be turned away from a job because of race or gender, but this sort of discrimination is not only limited to employment, it also takes place with frequency at places that provide various public and private services. Justice should indeed be gender blind, people should be judged not by their gender, race or class but by the “content of their character”.
It is evident that gender is a controversial issue to discuss. However, ultimately I believe that justice should not be gender blind. Woman have been fighting for equality for years, yet the laws regarding domestic violence does not appear to be exactly what they had in mind. There are many factors that should be taken into account when looking at domestic violence issues. Certainly the amount of physical damage that a male can impose on a female, is generally, far superior. Since this is the case, how could it possibly be measured as equal that both a male and a female should be arrested in a domestic dispute? Clearly, gender equality is considered when the issue is trying to be resolved rather than when/how the issue took place.
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