Gender Bias in the U.S. Court System

Gender Bias in the U.S. Court System

Statistics regarding male and female criminality

Types of cases involving women and men

Sentencing guidelines for judges imposed to diminish disparities

Feminists say women should get less jail time

Number of women vs. men arrested

Women committing misdemeanors get little or no jail time

Death penalty cases

10% of murder cases are perpetrated by women

Leniency of juries on women defendants

Easier for women to be treated leniently by juries

Sex crimes involving men and women adults vs. teens and children

Women are always given less punishment than men in this area

Reaction of judges towards female defendants

Male judges

Female judges

Body

a. Chivalry Theory of women perpetrators

Body

Focal Concerns theory of women perpetrators

Conclusion

In both the Constitution and Declarations of Independence, two of the most important documents in American history, it is promised by the very foundations of the government that all people will be treated the same way throughout the nation and in all circumstances, no matter what. The basis of the United States' court system is that all people are equal and should be treated as such under the law of the land. If a person chooses to commit a crime, either violent of nonviolent, in this country, then they will be suitably punished according to the severity and the nature of their crime. However despite the national identity of pride and equality, the United States' court system shows that there is an inherent bias in the proceedings. Disparity is frequent in the sentencing phase of criminal proceedings. Some criminals have been treated more harshly or more leniently if they are from a minority ethnicity or have certain religious beliefs, but also if the criminal happens to be a woman in which case lighter sentences are normal. History has shown that traditionally there is an opinion which makes it so people do not view criminals of both genders in the same way. On the occasions where women have decided to commit crimes, they have been historically judged less harshly than a man who performed the same action. In the United States, if a woman commits a crime, she will likely receive a lighter sentence than a man.

Statistically, men commit more crimes than women at a universal rate of approximately five to one (Gelb 2010,-page 3). However, this number does not differentiate between the number of people who are suspected of crimes, but are let off of the hook because of social factors. Sociologists believe that when compared to other factors which might influence sentencing, such as class, age or race, gender is by far the most influential characteristic (Rodriguez, Curry, & Lee 2006,-page 319). Research shows that the gender of a criminal is most affected in the in or out decision phase of the criminal justice system. That is to say, gender as an influential factor is most important when deciding whether or not the criminal will receive jail time for their actions or if they will avoid incarceration and receives probation or community service (Crew 1991,-page 59). In one study, researcher Kathleen Daly found a huge difference in the numbers of men incarcerated and the number of women who were imprisoned. The gender gap in incarceration rates according to this study was 29%, meaning that sentences for male prisoners, in general, were longer by 13.3 months compared to the sentences women received (Goldman & Portney 1997,-page 7). Her study examined forty men and women all accused of the same crime and of equal severity in order to prove that women were in fact given preferential treatment when it came to receiving the sentence for their illegal activities. Other studies pinpoint the gender bias gap as allowing for a two-year sentence difference between male and female convicted criminals ((Sarnikar, Sorenson, & Oaxaca 2007,-page 31). In certain cases, there is a less divisive gender gap, such as in cases of fraud or those which involve drugs (Doerner 2012). Under circumstances with nonviolent crime, the difference is not as noticeable, but there is still a better chance at an easy sentence if the criminal is female than if the person happened to be male.

The disparity in sentencing between men and women was even more pronounced before the implementation of sentencing guidelines because judges had more individual discretion in their sentencing decisions. The federal criminal sentencing guidelines were struck down by the Supreme Court in 2005 because they did not allow judges to take sociological situations into consideration. Many pro-feminist activists have stated that women should receive preferential treatment because traditionally they have more difficult circumstances which force them to commit crimes whereas men, simply by being male, have more opportunities.

Facts support the suggestion that women are indeed given preferential treatment when they commit crimes. Instead of serious violent crimes, women are traditionally involved in things like prostitution, larceny or theft, fraud, forgery, and embezzlement (Gelb 2010,-page 3). Men are far more likely to commit serious or violent crimes like assault, armed robbery, or rape which are more disturbing crimes and thus should theoretically inspire stronger punishments. However, even in cases of the same crime, women are granted preferential treatment in sentencing. According to the Sentencing Advisory Council in the country of Australia, "Arrest rates for women are substantially lower than are those for men: for all offences combined, men's arrest rates (7,480 per 100,000 men) are more than four times greater than women's (1,475 per 100,000 women)" (Gelb 2010,-page 3). Small crimes or misdemeanors are usually given a small prison term or some other form of punishment like community service or a fine. But women who are convicted of things like shoplifting are less likely to be sent to prison for any length of time than men convicted of the same crime (Gelb 2010,-page 15). In comparisons of almost all individual crime types, women criminals have been treated with less severity than male criminals.

One more serious example of this is the fact that since the death penalty was reinstated in the United States in 1976, only a dozen women have been executed while more than one thousand men have been (Jones 2010). This holds true historically as well. In the past century, only around 40 women have been executed as opposed to thousands of men who have been convicted of serious or violent crimes, often in serial form. As of early 2010, 61 women in the United States were on death row, a number which is equal to approximately 1.87% of the total population currently on death row in this country. Far more males have been executed than women and far more men are convicted of serious crimes than females. Part of the reason for this has to do with the types of crimes which people tend to receive the death penalty for. Death penalty cases are generally those where a murder has been committed while the person was committing another crime, such as during a robbery or a rape both of which are crimes that men tend to commit far more often than women. Usually it is only crimes like murder, called capital crimes, which can receive the death penalty, also known as capital punishment. Women only comprise approximately 10% of all convicted murderers in this country which explains the difference, but this number does not take into consideration how many women were guilty of murder, but that there was not enough evidence or not enough intent on the part of authority figures to follow through.

Even when women are found to have committed a serious crime that could potentially earn them the death penalty, the women are far less likely to receive this punishment. Instead of death, they will likely be sentenced to jail time. Juries are more likely to be forgiving of female criminals and recommend a more lenient sentence. Professor Victor Streib who specializes in criminal science and criminology said, "It's also easier to convince a jury that women suffer emotional distress or other emotional problems more than men" (Jones 2010). The stereotypes of women, such as their emotionality, lack of self-control, inability to reason, and their unimportance in the general identity of the sociological psyche all allow those who decide their fate to be willing to let them off the hook.

One area where this trend is most obvious is in the epidemic of inappropriate sexual relationships that occur between adults and teens. In cases where men are the perpetrators the media rightly portrays them as authorities who took advantage of their positions and the insecurities of pubescent teens, particularly teachers who abuse the trust they are given by parents and their children. Men are given harsh prison sentences which they rightly deserve. However, in the cases where women have been found to be the perpetrators of child molestation and child sexual abuse, the circumstances are different. Not only do they receive more positive attention from the media but in the courtroom as well. A study by Kansas State University which looked at statutory rape cases over a period of five years found that while male teachers found to have relationships with their students receive on average 15 to 20 years in prison, their female counterparts get one to three years or are let off with probation (Sacks 2007). In certain situations women have been given leniency because of their physical femininity such as the case where a woman became impregnated by a 14-year-old and was granted probation because she needed to stay out of prison to take care of the newborn baby (Elias 2007). Because she was a woman she was granted probation when a man in her same position would have been given a much harsher sentence.

Researchers found that both male and female judges tend to award women with a great deal of leniency as opposed to male criminals, but each for different reasons entirely. Both psychology and sociology takes part in the sentencing stage of a trial. According to Goldman & Portney (1997):

While the lenience of male judges toward female defendants might have been considered a 'chivalrous' display of minority, similar displays of leniency by female judges toward female defendants were seen as the result of 'sympathy' caused by the female judges' greater will and ability to identify with and understand the differences which drove their 'sister' defendants to violate the law (page 12).

In female judges, the likelihood for kindnesses and leniency is based upon a feeling of sisterhood and in males is more complicated. One study suggests that the universal desire to be lenient on women stems from a "deep-seated psychological prohibition against 'inflicting physical pain on girls'" (Goldman & Portney 1997,-page 12). If this is true, then it speaks for a larger psychological theory regarding all peoples. There are different theories about why males are lax in their demands for punishment. Each poses a potential answer without wholly satisfying the question at hand.

The chivalry theory, also known as paternalism, is one of the reasons that sociologists and psychologists point to in addressing this phenomenon of gender biases in criminal proceedings (Trueman 2012). Chivalry is a medieval tradition which was a series of rules stating what appropriate behaviors were when addressing ladies. Even before the medieval period, it was thought that women were mentally weak as evidenced in Romans 7:15 where a woman is quoted as saying, "For I do not understand my own actions. For I do not do what I want, but I do the very thing I hate." This is the idea of all women; that they are flighty and without logical thought. Over the course of time, this became ingrained into the universal psyche the idea that women are weaker than men both mentally and physically and thus should be treated with leniency when they error because they are less in control of themselves than men (Brockway 2011). The tendency in modern males and thus the society at large is to view women as lesser beings and therefore less responsible for their actions so it is then argued that they should get less punishment. Instead of treating women as equals, the propensity of members of society is to belittle women and to hold them in less regard. C. Truman (2012) claims:

After arrest, women are more likely than men to be cautioned rather than charged. They are less likely than men to be remanded in custody or committed for trial. Woman offenders are more likely than men to be discharged or given community sentence and less likely to be fined or sentenced to prison.

Male chivalry in the criminal courts refers to the idea of male police officers being less likely to charge women with crimes or even give them tickets for traffic infractions. It also takes into account the realization that traditionally women receive lighter sentences when they are convicted of crimes, which happens less often than with males. An alternative view of this theory is called selective chivalry or evil woman theory that states that females may receive lenient sentences only when the crimes that they have committed do not go against the stipulated norms of the female gender (Rodriguez, Curry, & Lee 2006,-page 321). The evil woman theory goes back to biblical times where women were first made subservient to men. In Timothy 2:12, it is written "I do not permit a woman to teach or to exercise authority over a man; rather, she is to remain quiet." This is the appropriate behavior for women even today and those who do not agree with this are marginalized and othered. If a woman murders through poison which is expected or engages in prostitution, she will receive a lenient sentence because it is not beyond the norms of the female gender. However, if they happen to commit an act such as a brutal beating with a hammer, this defies female norms and she will be more harshly punished. The evil woman hypothesis has been proven to be false, according to some researchers, because if there was validity in it, then women convicted of sexual crimes against minors would receive harsher punishments as this violates the characteristics of femininity (Embry & Lyons 2012,-page 146). As evidenced already, the fact is that most women are given extremely lighter sentences rather than being judged more harshly for behaving in an unwomanly way.

Another theory which has been formulated to address the disparity in females being punished for crimes is called the focal concerns theory (Rodriguez, Curry, & Lee 2006,-page 318). Sociologists focus on certain criteria in order to formulate their theories about feminine criminality and other items. This theory explains perceived gender biases in sentencing as being a product of the swift dispersal of crimes and personal views. Rodriguez, Curry, & Lee (2006) state: