The Gender Discrimination in Criminal Justice System
Introduction
Traditionally, women have not been viewed as criminals because of their less aggressive nature, making the act of crime to be mainly associated with the male gender. There are several theories brought forth to explain why the female gender would, or would not engage in crime. The theories, however, do not provide satisfactory explanations to the phenomenon leading to counterarguments. Also, the criminal justice of the United States of America has been viewed as discriminatory because it fails to address the gender needs of female offenders whose number has increased over time. This essay discusses the historical perspectives, theoretical explanations, gender discrimination, and the rise of women offenders within the United States justice system.
Historical Perspectives.
Historically, three patterns of thought influenced the view that the western society had on women and how they got treated. The three thought approaches are Judeo-Christian cultural beliefs, Greek Philosophy, and the Western legal code as stated by Fox (2002). These three bodies of knowledge had the assumption that naturally, men were the most likely to participate in criminal acts because of their dominance (Covington & Bloom, 2003). Criminal behaviors among women faced a lot of questions, assumptions, and stereotypes especially about the female gender as criminals or homemakers. Moreover, questions were whether women would be the offenders or the victims of criminal behavior in the United States of America.
There was not a single perspective to explain the common belief that women had their role precisely defined as that of homemaking and bringing up the family (Jackson, 2011). Additionally, the feminist theory had the belief that the male and female genders were equal even though social movements became necessary for societies to treat women as it treated men. Most gender theorists concur that the evolution of the feminist theory occurred in three phases whereby women demanded to get treated equally with men (Cox, 2012). In the mid-1800s, the first feminist wave started and the female gender demanded to get given the right to cast votes. The second feminism wave took place in the 1960s whereby the status quo got challenged by other groups of women who felt that they got marginalized by the system.
The status quo stemmed from civil rights movements and the rights of prisoner’s (Seal, 2009). The feminists and theorists of the second wave postulated that for complete liberation to get realized women had to get offered access to equal economic opportunities, sexual freedoms, and civil liberties (Cox, 2012).Furthermore, around the late 1980s and early 1990s the third wave took place aiming at addressing the challenges that did not get addressed in the second wave. In this wave, the women sought to embrace differences, diversity, and change, which made feminist theorists harbor the belief that there was a possibility of female to engage in crime. To further prove that women were historically not viewed as able to commit a crime, domestic violence was considered a normal phenomenon of marriage and men did not receive punishment for battering their partners. Domestic violence against women in the 19th century was not considered a crime as explained by Erez (2002).
Examples of 19th-Century Theorists
Various theorists attempted to provide their opinion on the behaviours of women and whether they were capable of taking part in criminal activities. For example, Mazzarello (2011) stated that Cesare Lombroso brought forth an anthropological perspective that led to the debate on whether biological characteristics of an individual would determine how they behaved. Lombroso was of the idea that criminal traits got acquired by a person during the early stages of development and evolution. Mazzarello (2011) further explained that if the ancestor of man were criminals, then his anthropological characteristics, as well as responses that are physiological, would not be identical to those of that standard man in the 19th century (Mazzarello, 2011). Holloway (2005) also reports that Lombroso argued that the woman had a smaller brain that made her inferior and not able to commit criminal offences.
Evidently, Lombroso’s work aimed at providing an explanation that crime was genetically or biologically linked whereby female criminals had common physical abnormalities. Such physical defects got possessed by humans that were more primitive making it evident that female criminals had not completely evolved. Esteves (2014) explained that the classical and positivists theorists had the belief that free will was responsible for female criminality. Such free will meant that one was more likely to engage in crime if the rewards were greater than the potential adverse consequences. These theorists postulated that if the punishment for the offence were extreme, an individual would not engage in crime. Cesare Beccaria was one of the classical and positivist philosophers who brought forth a successful argument that women would participate in rewarding criminal behaviours.
Jeremy Bentham also argued that punishment was able to deter more crime as opposed to encouraging such habits (Prior, 2005). The classical theory gained prominence in the late 18th and the 19the centuries as t the positivist theories achieved more popularity. A renewed interest in the classical theory since the 1970s got witnessed with harsher punishments being the desire of many people. The disadvantage of the positivist theories is that they do not attempt to shed light on the causes of criminal behavior and also fail to establish crime control strategies that are effective. Positivist theorists such as Jeremy Bentham argue that women criminality are a result of genetic links, personality traits, as well as learning and moral development as stated by Aviram (2011).
Moreover, such theorists postulate that the lack of societal moral wellness in the society as well as disadvantages such as poverty. The radical criminology model by Taylor in 1973 hypothesized that the definition of what is termed as crime depends on what the society views as moral or immoral because no act is criminal (Prior, 2005). The theory sees crime as an act that is socially determined whereby laws are designed to favor those who are wealthy and powerful. Evidently such individuals who get favored by the law may not get punished for their wrongs. Furthermore, the theory postulates that women criminality occurs at economic, political, and social levels.
The labelling theorists relate with the radical criminology scholars in that they view female criminal behavior is defined by the norms of the society. Such theorists such as Lemart and Gove believed that women participated in crime due to the simple fact that they develop deviant behavior as a result of conformity within the society. Moreover, labelling theorists are also of the opinion that no behavior is wrong or right and if punishment got given to the criminals, they get a further motivation to continue engaging in wrongdoing (Aviram, 2011).
Gender Discrimination in the Criminal Justice System
The number of women, as well as girls that have gotten caught in the United States' system of criminal justice, has increased significantly in the last 25 years as explained by (Lawston, 2008). Many of these women are facing the struggle against the abuse of substances, psychological illnesses, and past experiences with physical or sexual mistreatment. Such battles leave a devastating impact on the women in addition to getting imprisoned. However, Lawston (2008) further articulates that the criminal justice system in the United States of America is yet to achieve a system that comprehensively protects the health and safety of women in the prisons.
The successful supervision of reentry back into the community is yet to get achieved. Supplementary facts concerning the mistreatment of female offenders arise from harsh laws regarding the abuse of drugs that has increased the rates of arrests on non-violent female offenders (Cardaci, 2013). Since there is a lack of effective treatment approaches for the women who abuse drugs, the system of criminal justice handles such victims as criminals rather than those in need of public health services. Cardaci (2013) also highlights that offenders have to endure inhumane conditions that include practices that are abusive, the lack of services for psychological counselling, treatment, and proper health care in the correctional facilities.
Strip searches and getting confined in solitude are harmful practices to women who get incarcerated because of the amount of trauma and other psychological challenges that such individuals encounter. Apart from the criminal justice system, women receive a lot of post-conviction penalties that are outright discriminatory. Such convictions come in the form of barriers to employment opportunities, restrictions on education and housing that is affordable, as well as health care services. Cardaci (2013) notes that women who get into the criminal justice system while pregnant do not receive treatment that takes care of their obstetric stature as explained by
Evidently, the open practices for the transfer of inmates who are pregnant pose adverse consequence to the health of both the mother and fetus. In addition, incarceration practices violate laws set by the federal or the state systems and also conflict with the standards of care for gravid women because of their unethical and inhumane nature (Cardaci, 2013).
The Increase of Women in the Criminal Justice System
In the United States, the number of women currently getting imprisoned is double that of their male counterparts yet little the criminal justice system pay little attention to the females (Morín, 2008). Female prisoners have needs that are gender specific that differ from those of men. The reasons given for the increased number of women going to prison is the increase in crimes that are mostly nonviolent committed by women that are minorities in the United States of America. For example, Jackson (2011) points out that it is three times more likely for an African-American female to participate in offences as compared to a white woman.
Furthermore, the increase of incarcerated women is attributed to the turbulent history of emotional, physical, and sexual mistreatment which predispose them to crime according to Moore & Elkavich (2008). It is explained that risk factors that contribute to crime include the abuse of substances, a positive history of sexual assault and domestic violence, psychological conditions, and getting abused by a spouse (Morín, 2008). Because of the lack of facilities to rehabilitate victims of such acts, their experiences are criminalized and they end up in the criminal justice system leading to the increase of women in prisons. Furthermore, instead of girls who run away from home getting subjected to counselling and mental health services, they get arrested and fall subject to inhumane treatment in the criminal justice system.
Also, the reoffending rates are high which means that after the women get released from the criminal justice system, they are bound to get arrested again (Morín, 2008). Such re-offenses may be as a result of the barriers that the women face concerning effective re-entry strategies back into the communities. Moore and Elkavich (2008) further state that poor women from minority groups lack housing and may prefer to stay in prisons by being perennial breakers of the law.
Counter Arguments against the 19th Century Theorists
In the traditional context, the male gender has been the one associated with the participation in criminal activity because of his masculine and aggressive nature. Furthermore, few women participated in criminal behaviours. If a woman got involved in offending behaviours, it got explained that they were deviant and did not seriously take into consideration the routine roles of the female gender. Hypotheses have based the explanation of women criminality on physical abnormalities as well as psychological and social deficiencies (Holloway, 2005). It is argued that women are not at risk for not obeying the law as much as their male counterparts.
Aviram (2011) demonstrates that the theorists of the 19th century, however, argued that women are also dangerous and can commit crimes just as well as men. The positivists’ theories claim that women participate in crime because of the rewards that come with offending characteristics. However, positivists do not explain or provide the discovery of what exactly causes crime and the strategies that can get employed to offer solutions. Radical criminology theorists, on the other hand, argue that the redistribution of wealth would lead to a reduction of female offenders. This stance is not entirely accurate because criminal behaviours do not completely get linked to the lack of money such that even individuals that are not poverty stricken commit crimes. The labelling theorists, on the other hand, argue that behavior that is criminal is defined by the norms of the society such that individuals are labelled based on their stature in the community.
Such labelling as criminals is responsible for the creation of stigma and the modification of self-concept. Arguments against the theory of labelling would come from the failure of its proponents to provide an explanation as to why some individuals become criminals and why some crimes get judged as wrong universally. Such is because the theory postulates that no behavior is wrong or right. In conclusion, the understanding of criminal behavior is complex because no one theory offers an explanation that is satisfactory.
In closing, historically, it has been viewed that women are less likely to engage in behaviors that are criminal because they are considered less masculine and aggressive as their male counterparts. Various theories and theorists aim at explaining why the female gender engages in crime. For example, Cesare Lombroso’s theory attempted to explain the link between criminal behaviors and biological traits. His explanation adopted an anthropological approach to the engagement in crime. The theory of labelling, on the other hand, asserts that crime occurs as a result of societal influence while the theory of radical criminology is of the opinion that females engage in crime because of poverty. The theories, however, have certain counterarguments because they do not comprehensively explain the source of women crime. When the females get arrested, they experience discriminatory treatment in the criminal justice system of the United States because the system does not recognize their gender needs. The system, therefore, needs to get designed in a manner that is gender sensitive so that discrimination against women in the criminal justice system does not occur.
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