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A court is a type of tribunal which is usually a government institution that has the right to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal and administrative matter in accordance with the rule of law. It has been argued for some twenty years that men and women are treated differently in courtrooms. In this essay an evaluation will be made in the ways in which courts treat men and women differently, both as victims and as offenders. Firstly focus on offenders, therefore looking at a juxtaposition of two similar cases which are separated by the gender of the murderer. While a woman who killed her husband to protect herself received a life sentence for murder, a man who did the same to his wife was only given a two-year sentence, And then looking at how courts treat men and women as victims looking at the way they handle rape cases, and also the explanations to the issues of gender in courts which will also be explored.
In a case of domestic violence, Sara Thornton and her ten-year old daughter faced repeated violent abuse by her alcoholic partner Malcolm Thornton. Sara asked for help from her doctor and even her local church and the social services, she called the police to her house five times because of the attacks she received from her partner, he was in fact due to appear in court as he was eventually charged with assault, one night in June 1989 she stabbed him to death whilst he lay there drunk on the sofa, Sara was convicted of murder and sentenced to life imprisonment the continuous abuse she endured from her partner was ignored. This incident caused widespread controversy amongst feminist campaigning domestic violence. The judge noted how she could have ignored the situation by walking out of the room or going upstairs (Bindel, 2009 Guardian). Two days later, a similar case to that just mentioned, however the gender of the murderer is different, is the case of Joseph McGrail, who killed his common law wife by kicking her continuously in the stomach. In this case he was given a two year sentence for manslaughter and walked free, the judge was sympathetic and added "this lady would have tried the patience of a saint" (Bindel, 2009 Guardian). Already it can be seen here comparing the two cases that men and women are treated differently in the courts. The case in which the male was the murderer was let off lightly and received sympathy from the court, however when in a very similar case a woman committed murder regardless of the drive that led her to it she received a harsher punishment. As a result to the treatment in these cases, the feminist law reform campaign justice for woman was introduced in 1991, It's as though mans anger is justified however a woman's is simply her own fault.
There are many similar cases like the ones mentioned, where women receive harsher punishments on accounts of domestic homicide. One case which came to international attention was the case of Kiranjit Ahluwalia, who burnt her husband to death as a result of ten years of repeated physical, psychological and sexual abuse. She was convicted of murder and sentenced to life imprisonment even though she pleaded not guilty, there was lack of defense of the violence she endured for ten years. The prosecution suggested that Ahluwalia was a jealous woman who had killed her husband because he was having affairs. However this was later overturned in an appeal and was replaced with manslaughter, this is a case where the court failed to consider all the factors which led this incident to occur. A psychiatric report was discovered but was not produced at her trial, there was also a concern that the judge may have misdirected the jury on a section of law.
Men commit roughly 90% of domestic homicides, their female partners are the victims. Two women die every week as a result of domestic violence on average. Men that kill their partners, the defense of provocation is tailor-made. In a case of provocation will reduce a charge of murder to manslaughter if the defendant can show that things were said or that they were provoked, which caused them to lose control. It has been known that Judges express sympathy for men who state they were provoked by female partners, but often appear to have little for women who kill after being raped by their partners or have been victims of domestic violence. This usually tends to be because when women who are being regularly beaten by their partners, their dominant emotions are usually fear or despair, also there is an element of blaming the victim of these incidents as there's a question of 'why didn't she leave?' (Walklate, 2004)
It is important to note that a lot of the physical or emotional abuse towards women usually goes unreported. Thus, when it comes to giving evidence in court after saying it was self-defence, some women may be unprepared. In court the claim of self-defense is in essence worthless without presenting any hard evidence. Unfortunately for women, fear and manipulation can come into play and so reporting abuse happens to be more difficult than imaginable.
There is a concern that judges and magistrates treat women harshly and more severely for women offenders that face court for less serious offences. A woman who is convicted for stolen goods and theft is twice as likely to go to prison. Research has highlighted that not all women are treated equally before the law, it has been known that even if chivalry is available to women, it doesn't mean it is extended to all women, Feinmen (1980) noted that chivalry is set aside for white middle class women (Silvestri & Crowther-Dowey, 2008). Women do commit a wide range of offences however they commit less than men and are less dangerous and violent compared to men. Women defendants pay for the judges belief that it is more in a man's nature to commit crimes than it is in a woman's nature, therefore it was maintained that when a judge came across a woman who committed a crime, he was more likely to punish her not only for a specific offence but for transgressing against his expectations of womanly behaviour (Simon & Ahn-Redding, 2005). More women are sentenced to imprisonment for their first offence compared to men, there is a problem with the lack of recent detailed research on decision making in sentencing.
One theory as to why judges might be harsher when sentencing women is that male violence is simply more accepted than female violence. While a case involving a male murderer might not be surprising to anyone, a female murderer is much less common, and therefore, a murder committed by a female seems like a more serious crime. Pollack (1950) argued that the crimes committed by women was underestimated and that women are more prominent than men in the dark figure of crime, women are inherently deceitful and cunning and are able to conceal their crimes (Silvestri & Crowther-Dowey, 2008).
It is not just the cases of domestic homicide being the case of which the courts treat men and women differently, it is also the case of rape where women are usually the majority of victims. Although the rate of reporting a rape to the police has increased over the last decade, the conviction rates on the other hand are very low. Women as victims of rape end up feeling like the offender when appearing in court. There was a case of a woman named Lucy where her house was broken into and was attacked by her neighbor whilst she slept, who she then had to face in court. She claimed how the barristers 'ripped into her' and trying to make out things that hadn't happened to see if she would crack, she stated how she felt more on trial than the attacker. Lucy's experience in court is common amongst women who are victims of rape. Part of the defense was that she had been out drinking that night with friends, it was suggested that she was too drunk to know what had happened (Lorimer, 2007 Guardian). In this case it shows how the court made the victim seem like the one to blame. In a study by a crime correspondent found that senior barristers deliberately tried to make the complainant in rape trials as "sluts" and of low character, lawyers admitted in the study (Bennetto, 2000 Independent). This explains only 6.5 Percent of rapes that were reported to the police led to a conviction (Fawcett Society, 2007) this figure shows how low conviction rates is for this crime.
It is no longer allowed for barristers to ask direct questions on a woman's character and her sexual history however defense barristers find ways round the restrictions and exploiting juror's prejudices about the way a rape victim should look, act and dress. the experience women face in rape trials is governed by what is called 'the importance of being perfect' by Adler (1987), it was examined that rape trials at the old bailey had revealed a number of strategies which was adopted by defense barristers in order to make the victims evidence less than believable (Walklate, 2004). There's a strong element of phalloncentrism when it comes to evaluating gender in courts, especially in a rape trial which is argued by Smart (1989), this means that women's experiences are invalid and this is achieved through the privileging of a male centric view of female and male sexuality. Its presumed that women don't know their bodies therefore victims in rape trials are denied a sense of agency for their actions and they are rarely understood in relation to their own experience however when it comes to the defendant it comes down to the fact that it was his natural sexual urges. Questioning in rape trials can go further than the woman's behavior in relation to the actual incident, private aspects of a woman's body can be used when questioning, and the offender can claim how the woman 'wanted it' (Walklate, 2004).
There are phases of feminist response to understanding the law which was pointed out by Naffine (1990). Firstly being the liberal feminist position which accepts that the law should be and can be fair and impartial, law is rational however is doesn't live up to its aims because it constrains women. Another feminist response to law is that law is male centered (Walklate, 2004) this meaning that law is based on the experiences of men and not women. A study was also made called the Eaton study 'justice for women: Family, court and social control' (1986) it was concerned with documenting practices taking place within magistrates court which was used a site for social control. The study compared the experience for men and women in the magistrate's court and the way the professionals operate within the court. in the study it is revealed how the idea of family and the home are differentially employed to depict the character and the circumstances of the male and female defendants in order to understand their behavior when lawbreaking. A comment is made concerning the man's employment record and a woman's housewifery skills, these are used to construct an image of the defendant. It was concluded in the study that when a man and woman appear in court for similar offences they receive the same treatment. If they were to not be in the outside of the normalcy for example not being in a heterosexual relationship within a normal family environment then it may be a different outcome. Another study by Allen (1987) considered psychiatry and the law which highlights that women are more likely to receive a sentence from the court which includes some form of medical or psychiatric treatment. The study indicates how there is emphasis on the fact that there is more written about the mental life of women and what happens to them rather than initiating or engaging in intentional behavior and with males there is more emphasis on what they do and how they participate in the world (Walklate, 2004)
Improvements have been and still are being made to the way men and women are treated differently in court. Recommendations were made in the Corston report, and the government had accepted some of the recommendations made, in terms of courts it was noted that deciding what sentences are appropriate for women offenders entirely a matter for the courts, however the government agrees that more needs to be done to ensure that custody is only used for those women who truly need to be there, the government also made commitments to promote and increase the use of community service which can be more effective in responding to women's needs. It is also mentioned how it is worrying evidence that the courts treat women differently from men. In 2002 37 Percent of adult women given sentences had no previous conviction which is more than double the rate for male offenders, even though they women commit more acquisitive offences and have less involvement in serious violence (Corston Report, 2007). Research by Fawcett indicates that there is a strong link between acquisitive crimes and women's needs to provide for their children.
In Conclusion having evaluated the ways in which the courts treat men and women differently as victims and offenders it can be seen through cases mentioned throughout the essay. There's a concern that women get treated harshly for less serious crimes, and has been noted that when they come before a judge they result in a harsher punishment for transgressing against his expectations of womanly behaviour. Also as a victim of rape, they are blamed for the situation for the way they behaved, dressed and whether they had been drinking that night is pointed out, yet for the male defendant it is justified by his sexual urges and that she was drunk and wasn't sure of what happened. Judges sympathies with men more in courts however women are treated harsher and are convicted for petty crimes and this is said to be because women are not expected to act in a criminal way and so therefore are punished harsher whereas it is it in a man's nature. Whether women are the victims or the offenders, they are treated differently in court compared to the way men are treated, this is clearly a concern and the courts need to make changes as to the way they handle cases with females, the law is so phalloncentric that it mainly based on the experiences of men and so when it comes to sentencing a female it is harsher because the offence is the same however the experiences of a woman is different.