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Feminism and the Interpretation of the Criminal Justice System

-A major facet of the ‘critical turn’ that we have been talking about is
the general development of questioning perspectives on the nature of
crime and its causation as well as the interpretation of the criminal
justice system.
-Today we are going to discuss one of the most significant features of
modern criminology—feminism.
-In order to do so we must understand:
1. The traditional interpretation of female criminality in
criminological theory.
2. The development of feminism as a historical and social
factor that would impinge upon all aspects of
understanding the relationship between women and crime
(as well as men and crime).
3. How alike and/or different are men and women in their
criminality? Do they have the same motivations? Do the
same conditions affect both men and women in the same
way? Does the criminal justice system treat both in the
same way?
4. How does feminism understand the criminal justice
system?

-As we indicated earlier in the year gender is the strongest

predispositional factor in criminal conduct. Race and class, which are
generally spoken of much more readily, are minor in significance when
compared to gender. Men commit most crimes; as a result,
masculinity is often considered to be a causal factor in crime
causation.
-We must first begin with some basic concepts in order to frame a
feminist criminology.
1. Patriarchy: This term refers to the general power structure of
society. Society is controlled by and for men. As a result of this,
men will consistently work, as they have done throughout
history, to keep women in a subordinate position. Marxist
feminists have argued that women have largely been perceived
as ‘property’ to be exchanged for the advantage of men—Engels
spoke of the other sex as ‘erotic property’. Also, important to
the idea of patriarchy is the notion that the culture and ideology
of a patriarchical society are geared towards ‘male’ standards
and points of view. In traditional society, women were seen
primarily as mothers, wives, and caregivers. This notion is still a
powerful influence in today’s world. In a modern society, women
are thought to ‘fit into’ certain specified roles. Women may be
mothers, clerical workers, nurses, strippers, prostitutes, etc. In
modern society, women are also often turned into sexual
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commodities used to arouse male sexuality for the purposes of

selling goods.
2. Inequality and the power differential: A basic component of
modern feminist theory is that men and women have different
positions in society and that women will tend to be unequal to
men in terms of economic, political, social, and cultural power.
From a criminological perspective, we might ask if this inequality
is reflected in the organization of the criminal justice system.
Does it stem from the society in general or is it specific to the
criminal justice system?
3. Resistance and Liberation: Feminist theory begins from an
acknowledgement of women’s unequal position within a
patriarchical system and then moves to resist and liberate
women from this situation. ‘Feminist criminology’, therefore, is
not only interested in exposing the difficulties of women but of
liberating women from these oppressive contexts. Therefore, the
devising of strategies for resistance and policy changes is a
crucial part of feminist criminology.

Early Theories of Female Criminality

-Cesare Lombroso, who many consider to be the ‘father of

criminology’, wrote about women as criminals.
-He published a famous text titled “The Female Offender.”
-He described female criminals as having an inherent tendency to
criminality. They developed this because of their inability to ‘normally’
become ‘feminine’ with moral refinement (Lilly, et al, 210).
-He also used physiological evidence that fit with his general racialized
view of criminality. The shorter and darker women were more prone to
criminality.
-Female criminals were, in sum, atavistic expressions of incomplete
evolution.
-Lombroso’s main point was that criminal women were too masculine
and not feminine enough. Their ability to ‘think like a man’ leads them
away from the traditional feminine virtues of passivity and decorum to
aggression and violence.
-W.I. Thomas wrote two texts on sexual behavior and society: Sex
and Society and The Unadjusted Girl.
-In the earlier text, he argued, in a traditional fashion, that men and
women were fundamentally different. These differences came from
the varied use of energy. Men expended energy, women conserved it;
as a result, men were aggressive and active while women were passive
and acted upon.
-In The Unadjusted Girl, Thomas broadened his outlook.
-He claimed that female delinquency was ‘normal’ under certain
circumstances (Lilly, et al, 211).
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-Further, he argued that women could be rehabilitated. Female

criminality was caused by the inability of certain women, as found in
the lower class, to adequately adapt to roles that would favor their
conformity.
-Sigmund Freud, one of the fathers of modern psychology, had some
influential perspectives on the psychic state of women.
-For Freud, “anatomy was destiny.” As a result, women’s anatomical
inferiority to men, reflected in their lack of strength, meant that
women were destined to occupy an inferior social status. They were
meant to be mothers and wives.
-This anatomical difference between men and women would have
serious developmental influences.
-Women do not have a penis. The penis is a sign of masculine strength
and authority. Girls and boys recognize the difference at an early
stage of life with lasting implications. Men see their penis as a sign of
their status while women develop a generalized ‘penis envy’.
-This penis envy means that women will have a tendency to become
vengeful because of their basic jealousy over their own anatomy.
-Men tended to be rational while women were irrational.
-Generally, a deviant woman was one who is attempting to be a man.
-Female aggression, rebellion, and criminality were often “expressions
of longing for penis” (ibid, 212). If not treated this condition could lead
to a severe state of neurosis (a consciousness dangerously split
against itself).
-To be ‘normal’ women must try to fit into the roles of mother and wife
at the expense of gender equality (which was just a misappropriated
envy on the part of women).
-Freud seems to have had a clear class bias because it seems that
middle and upper class women are the only ones able to adapt in an
effective way. Freud’s standard of female normalcy was cleared a
class-biased conception.
-Yet Freud is important for two reasons: 1) his theories were used for
decades as a tool to keep women in their traditional roles; and, 2) he
influenced many thinkers who came after him (including many
feminists).
-Otto Pollak was one of the most influential post-war thinkers in the
area of female crime.
-Pollak argued that most female criminality was, in fact, hidden from
public view.
-He built his theories on the basic notion of physiology—women were
deceitful because of their bodily and genetic make-up:
Pollak reasoned that because men, unlike women, must achieve
erections to perform sex acts, they could not hide their emotions
or deny failure to perform sexually. Women’s physiological
nature, on the other hand, permitted them to hide their
emotional involvement in sex to a degree. Therefore, Pollak
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suggested that women were innately deceitful. When combined

with the domestic opportunities they had as maids, nurses,
teachers, and homemakers, this deceitful nature permitted them
to commit undetectable crimes (Lilly, et al, 213).
-Women were also vengeful during their menstrual periods. During
this time women, according to Pollak feel their biological fate more
strongly and often respond with false accusations.
-Chivalry Thesis: Pollak believed that female crime often remained
hidden because of this factor.
-He argued that men and women were probably similar in their levels
of criminality but the difference lay with how women were treated by
the criminal justice system. They were treated in a paternalistic way
that often de-escalated the danger and severity of their criminal
activities. Men in the criminal justice system had a natural inclination
to protect and ease the suffering of women because of some notion of
chivalry.

-Men constructed these theories; indeed, they have a clear sexism as

their main point of view. It is the basic premise of these thinkers that
men and women are different at a fundamental biological level. Any
theory that seeks to explain criminal conduct on the part of women
must start with the differentiated bodies of men and women; at least
that is the argument made by these thinkers.
-However, as we move into the 1960s and 70s things begin to change
and women themselves begin to enter the debate.

-Emancipation Thesis: This is an argument put forward by Adler in a

text titled Sisters in Crime. In it he argued that “lifting restrictions on
women’s opportunities in the marketplace gave them the chance to be
as greedy, violent, and crime prone as men” (Lilly, et al, 215). The
basic argument is that as women gain more and more legal and social
equality their crime rate will also rise. As a result, male and female
criminals are the same and the removal of barriers will heighten this
basic similarity—men and women will become the same.

The Development of Feminist Criminologies

-Feminist criminology took root in the late 1960s and early 1970s. The
general trends of the time favored a deep questioning of the traditional
sources of power. Like anti-racism and the gay rights movement of the
time, feminism argued that there were basic structural disadvantages
that members of certain groups had to endure. However, feminism
cannot be understood in a monolithic fashion; there are in fact
numerous types of feminism. Lets examine the most important.

-Liberal feminism: This strand finds its roots in Enlightenment notions

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of equality and liberty. It emphasizes gender socialization as the cause

of crime. As a result, each gender will commit crimes that are in line
with their gender roles in society. Men are more likely to be violent
and aggressive because of socialized roles that prepare them for such
behavior.

-Marxist feminism: These theorists argue that the class and gender
division of labor combine to determine the social position of men and
women (Lilly, et al, 218). Crime, according to this perspective, is
dominated by a capitalist mode of production; women’s labor at home
and in the marketplace creates profits for largely male capitalists. The
exploitation of women, therefore, is an intrinsic part of the capitalist
mode of production.

-Radical feminism: These theorists see crime as a part of the biological

fact that men are born to be aggressive and dominant. Crime is an
expression of men’s desire for control. Rape, for example, is “nothing
more than an attempt by all men to keep all women in a state of fear”
(Lilly, et al, 218).

-Socialist feminism: Socialist feminists try to incorporate insights from

both the radical and Marxist perspectives. Messerschmidt argues, for
example, that connections exist between capitalism and patriarchy
that lead men to crime and women to exploitation or oppression.
Capitalism creates crime. However, this is a condition that favors men
in their opportunities whereas women are given less opportunity to
benefit from illegitimate activities. Gender is linked with capitalism as
well as racial and other forms of difference.

Essential Features of Feminist Theory (Daly and Chesney-Lind—1988)

1. Gender is not a natural fact but a complex social, historical, and

cultural product; it is related to, but not simply derived from,
biological sex differences and reproductive capacities.
2. Gender and gender relations order social life and social
institutions in fundamental ways.
3. Gender relations and constructs of masculinity and femininity are
not symmetrical but are based on an organizing principle of
men’s superiority and social and political-economic dominance
over women.
4. Systems of knowledge reflect men’s views of the natural and
social worlds; the production of knowledge is gendered.
5. Women should be at the center of intellectual inquiry, not
peripheral, invisible, or appendages of men.

-Gendered pathways to lawbreaking: Researchers in this area have

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applied some of the tools of life-course analysis to understand why

some women drift into criminality. Women, for example, who have run
away from home in response to neglect and abuse often move on the
street into homelessness, unemployment, drug use, and prostitution
(Lilly, et al, 221). A problem with this perspective is that it does not
examine key indicators of inequality such as “racial and economic
marginality, school experiences, and drug and alcohol use” (ibid).
-Race, Class, and Gender.
-Many, such as Sally Simpson, have argued that complex interaction of
race, class, and gender has not been sufficiently examined in
criminology.
-Research has shown that women who come from lower income areas
are more likely to be involved in crime either as perpetrators or as
victims. Therefore, to speak of the relationship of crime to gender
means that, in order to get a full picture, we must also examine the
way that class and gender intersect with it.

-Feminist Criminology and Corrections

-Women make up less than ten percent of the prison population in
North America. Why has this happened? According to Lilly, et al:
In fact, by 2006 there were almost 200 000 women in prisons
and jails in the United States, the number having doubled from
that of only five years before (Amnesty International, 2006). The
so-called steel ceiling (often attributed to the so-called chivalry
hypothesis) that used to divert women to correctional
alternatives such as probation or other forms of community-
based treatment, has been cracking for some time (Kruttschnit
and Green), in part because women are committing a greater
number of crimes of the sort that bring men to jail and prison, in
part because of mandatory sentencing, in part because of the
“war on drugs” that is sometimes called a “war on women”, and
perhaps because of a “vengeful equity” that has led the criminal
justice system to respond to women’s demands for equality with
an equity that makes them pay for such demands (Chesney-Lind,
1998). At the same time, it is widely recognized that correctional
systems were designed for men and that their deficiencies are
magnified when dealing with women (229).
-Different needs: 80% of women inmates have dependent children.
-About 5% enter prison pregnant. How can the prison system respond
to this?
-Also, many prisons are largely unprepared to deal with many issues of
women’s health.

Issues:

-“double victimization.”
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-rape and rape shield laws.

-children and motherhood in prison.
-prostitution: are women being unfairly blamed for this crime? What of
the johns?---the types of crime that women commit.
-The female serial killer—i.e., Eileen Wourmos.