Feminism and Criminal Justice Sexism

Feminism and Criminal Justice

Sexism and Criminal Justice

Flavin's invitation to her fellow criminologists, asking them to abandon andocentric thinking when discussing and evaluating the criminal justice system, is such a broad-based invitation and would have such an incredible impact on both traditional and modern definitions of justice, crime, victimization, and culpability, which is simply impossible to explore all of its possible implications. After all, gender impacts every single human behavior, even when those human behaviors are seemingly non-gender related. For example, drug use offenses are facially neutral and may even be applied in a neutral manner, but if men and women are driven to use and purchase drugs for different reasons, than even such a gender-neutral offense becomes gendered. When one factors in the disparate impacts of sentences on men and women, given that more women have sole responsibility for children than men, the discriminatory impact of these facially neutral statutes become even more apparent. While gender's impact pervades the entire criminal justice system, nowhere is it more apparent than in those areas directly involving gender and the politics of sexuality: rape, domestic violence, and prostitution.

By this time, most people are aware of the disparate impact that rape has on women. Statistics vary, but all credible available research supports the idea that women experience sexual violence much more frequently than men. However, the political implications of sexuality become apparent when one looks at the evolution of rape statutes and the concept of statutory rape. Though laws vary from state to state, every state has a "statutory rape" law, which provides that certain types of sexual contact are de facto illegal, regardless of any alleged consent. Typically, these statutory rape laws provide that sex with an individual under a certain age is rape, because that person is unable to consent to sexual contact. Currently, most statutory rape laws are facially gender neutral, and apply regardless of the gender of the underage individual. However, this was not always the case, and it not even constitutionally required. On the contrary, in Michael M. v. Superior Court of Sonoma County, the Supreme Court determined that a rape statute based on the edge of consent could be applied only to female victims:

Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly "equalize" the deterrents on the sexes.

As sexual mores have relaxed, so has the use of statutory rape statutes to punish teenage sex. Instead, statutory rape statutes are more likely to be viewed as tools for criminalizing pedophilic behavior. However, when one looks at teenagers who are prosecuted for statutory rape, the majority of offenders continue to be male. Therefore, it appears that prosecutors are exercising their discretion to punish offenders in the same manner as the statute in question. Depending on one's individual school of feminism, this is either a blatant example of sex discrimination or a realistic policy that acknowledges that the biological differences between the sexes means that different behaviors will have different results. Introducing a feminist perspective into the argument does not solve the argument, because there are many differing versions of feminism. However, it does provide additional support for existing arguments.

The area of prostitution is another area where sexuality and criminality collide; though there are male prostitutes, the vast majority of prostitutes are female. Furthermore, the vast majority of johns are male, regardless of whether the prostitute is male or female. Finally, the majority of pimps are male, and the pimp-prostitute relationship is almost always tinged with some type of coercion, from subtle manipulation to outright violence and domination. Some feminists argue that prostitution furthers existing sexual stereotypes and is, itself, an inherently sexist institution. Others argue that it is paternalistic sexism to prohibit women from making a living with their bodies, though men are not prohibited from engaging in their most profitable forms of physical labor. There is no ideal answer regarding the question of the commoditization of sexuality. On the contrary, "both commodification and noncommodification may be harmful...under our current social conditions." Therefore, the issue becomes; which option is more likely to lead to more ideal social conditions? The fact is that, while some individual prostitutes may be better able to attain de facto equality if allowed to pursue prostitution, because it is their best available financial option, prostitution, on the whole, perpetuates the idea of women as "things." In addition, while some people claim that prostitution is a victimless crime, even when prostitutes are truly consenting sex partners, the crime does have victims. Wives, girlfriends, and children of johns are victimized by prostitution. However, they are not victimized in a criminal manner; the criminal prosecution of adultery has long-been abandoned. Therefore, it appears that, even if prostitution remains criminalized, johns, whose individual behavior is more likely to have a detrimental impact on society than prostitutes', should be penalized more harshly than prostitutes. However, in reality, the opposite is the case.