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 | main | news | security | policing 9 Apr 2020 | crime.co.nz 
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Gender differentiation in criminal court outcomes

This pattern is not unique to New Zealand. A recent United Nation’s Crime Survey concluded that men are disproportionately suspected, apprehended, prosecuted, convicted, and imprisoned throughout the world.

Based on these official statistics we might conclude that our courts are ‘sexist’ because men appear to be treated harsher than women. However, in terms of getting the ‘bigger picture’, official statistics are notoriously problematic. For example, it is possible that sex differences in other key determinants might explain why men’s judicial outcomes are harsher than women’s. In particular, sex differences in criminality seriousness may account for disparate outcomes.

Women’s law breaking is usually less serious and fundamentally different from men’s. Thus, any investigation seeking to establish whether men and women are actually being treated disparately by the criminal courts would have to control for these differences. Still, international researchers who have used such controls still find that women receive preferential treatment at the point of sentencing and remand even when they appear before the court under similar legal circumstances to men. Social factors, especially familial ties, histories of victimisation and mental health have been highlighted as explanations for these sex differences. For offending women, domesticity and dependence are often used by the court to mitigate punishment. In particular, women often avoid harsh judicial treatment because, in contrast to men, the courts see them as more depended upon by the family. Women are also more likely to be viewed as ‘mad’, victims of personal misfortune and therefore not altogether responsible for their criminality. In contrast, families are viewed as simply better off without criminal men who the courts consider to be ‘bad’, active and intentional creatures, who are innately responsible for their actions.

To investigate whether similar gendered patterns were evident in New Zealand’s criminal courts I analysed sentencing and remand outcomes for 388 offenders in Christchurch’s District and High Court between 1990 and 1997. My findings, perhaps not surprisingly, mirrored those found internationally. In comparison to men, I found that women received less severe judicial outcomes. With numerous factors statistically controlled, women were slightly less likely to be imprisoned and their imprisonment terms were substantially shorter than men’s (five to twelve months shorter depending on the offence). Furthermore, women were less likely than men to be remanded into custody and if held in custody they spent shorter periods of time there than did men. Finally, for those offenders remanded on bail, men were also more likely than women to be given special bail conditions.

A further more in depth analysis of Probation Officers’ pre-sentence reports and Judges’ sentencing remarks revealed the process by which the men and women in my study came to receive different judicial outcomes. What emerged were two gendered ways of viewing, understanding and judging offenders and this explained how sex differences in sentencing and remand came about. In line with the international research, the family and mental health were identified as key sites of gendered variance.

In particular, I found that Judges and Probation Officers were more likely to talk about women in terms of their ‘superior’ nurturing capabilities, as weak willed, dependant on ‘bad’ men who had lead them astray, as mentally unwell and/or as victims of circumstance. This acted to neutralise women’s dangerousness, blameworthiness and responsibility, making punitive sanctions seem less appropriate. The court, on the other hand, was more likely to construed male offenders as bad, disruptive, and dangerous. Unless men were in paid public work, judicial sympathy was rarely given because men were generally considered a threat to the social order and in need of state-controlled regulation. Employment was particularly beneficial for men with families. Being seen as a ‘hard working breadwinner’ often decreased men’s chances of imprisonment. In New Zealand, men are expected to provide rather than care for their families so I was not shocked to find similar assumptions operating in our courts. Unlike women, when men did have childcare responsibilities these were ignored and did not result in judicial leniency. Commonly held beliefs about women’s place in New Zealand society were similarly reflected in the court’s focus on women’s care giving rather than employment which was rarely discussed or used to mitigate sentence severity. Dominant ideas about femininity in this country also ensured that pathology, emotionality, inner turmoil and trauma were commonly used in court to excuse women’s criminality and detract from their potential to be dangerous. This allowed the court to rationalise rehabilitation over punishment for women.

New Zealand is generally uncomfortable with the idea of the female offender. Misbehaviour, deviance and criminality do not sit comfortably with stereotypical ideas about what a woman ‘should’ be. So when confronted with criminal women our courts will subsequently seek reasons for their behaviour. In contrast, judicial views of men support commonly held ideas about masculinity. In this country, men are expected to be ‘tough’, ‘hard’ and to ‘take it like a man’. As a result men are denied the right to feel, be vulnerable, weak and/or experience mental ill-health. In other words, New Zealand is generally uncomfortable with the idea of the male victim. This is reflected in our criminal courts where men are continually placed in the domain of human action by being presented as actively adopting an offending lifestyle or at fault for not ridding themselves of their criminality. Constructing men as powerful actors by presenting them as definers of their own destiny, meant that the criminal men in my study were more likely to be held responsible for their actions and to be seen as dangerous. Primacy could therefore be given to punitive sanctioning over rehabilitative measures.

The reality is that criminal men and women both tend to come from disadvantaged circumstances. Men’s criminality, just like women’s, does not exist in a social, political or economic vacuum unaffected by unemployment, poverty, drug and alcohol addiction, victimisation, general mental and physical illness. Our jails are full of horrific stories of abuse, pain and trauma so the boundaries between offender and victim are often blurred regardless of sex. Still, time is more often spent considering female victimisation and while this is an important area of inquiry, we need to be careful not to ignore men’s victimisation. Victimised men are, in contrast to women, more likely to externalise their pain, anger and powerlessness. This is reflected by the fact that New Zealand’s crime problem is actually a male problem. It is therefore imperative that we stop rendering all men universally powerful and acknowledge that male criminality is actually a response to their relative powerless.

Crime.co.nz would like to thank Dr Samantha Jeffries BA, BA (hons), PhD, Post-Doctoral Fellow at the Crime and Misconduct Commission, GPO Box 3123, Brisbane, QLD 4001, Australia. Dr Jeffries can be contacted by email at samantha.jeffries@cmc.qld.gov.au

Is differential treatment by gender warranted?

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In New Zealand, governmental/official crime statistics show that women are less likely than men to be convicted of an offence or sentenced to imprisonment, and receive shorter terms than men and are more likely to be granted early release on parole.

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