The Indigenous Experience Of The Criminal Justice System Criminology Essay

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Today, we live in a gendered world; the differences are deemed by society and society defines what activities are appropriate for each gender. Men are perceived as the more reckless gender that is seen as violent and angry, but they are the leaders and problems-solvers of our society. Women are perceived as the gender that sets the example of appropriate behaviour - that is law-abiding, caring by nature and passive rather than aggressive by nature (Stainsby 2002). When looking at the statistics of incarceration for violent crimes, men dominate the statistics because violence is seen as an essential aspect male virility. When a woman commits a crime, she is seen as deviant and confronting to the traditional gender role that society places on her. In terms of criminal behaviour and the experience within the criminal justice system, there are marked differences between male and female offences. In New Zealand, by far, the majority of crime, which includes high level violent offending, is committed by men and women tend to commit lower level, non violent offences, and do not tend to pose a risk to society. Though in recent decades, the number of women who are under criminal justice supervision or who are incarcerated has increased which leads to believe that the experience within the criminal justice system is ever-becoming a gendered experience because women are being incarcerated for lower-level offending, in comparison to their male counterparts, because they are seen as deviants to the norm of female behaviour.

Male and female offenders share a lot of characteristics and are very similar in terms of their racial and ethnic background, age and socioeconomic status. Incarcerated females tend to be young (two thirds are under the age of thirty-four), members of a minority group (more than 60%), have no partner, spouse, or significant other (80%), undereducated (40% did not graduate high school) and unemployed (Beck and Mumola. 1999). Contrasting to men, a large majority of female offenders are unmarried, are mothers of children under the age of 18, and are daughters who have grown up in homes without both parents present (Chandler, 1973:7; Freedman, 1981). In addition a distinctive characteristic of females who are incarcerated is their likelihood of having survived sexual and/or physical violence, particularly by a male relative or intimate partner (Greenfeld & Snell, 1999). Research also shows that incarcerated females have experienced unusually high rates of extreme physical and emotional abuse from parents or caregivers, involvement in drugs, and prostitution, whether or not they were imprisoned for these crimes(Harlow, 1999).

When women commit a criminal act, especially a violent act, they evoke different reactions from members of the criminal justice system because their behaviour contradicts their gender role assumptions of being passive and law-abiding. Female criminal behaviour tends to appear as a product of mental, emotional, physical and social problems. The impact of physical and emotional abuse on women is often intensified by excessive disadvantages and economic problems (Chandler, 1973:7; Freedman, 1981). Early classical criminology theorists, such as Lombroso (1895) and Pollak (1950) have examined female criminality. Historically, these theories about female criminalist have ranged from biological to psychological and from economic to social. However these cultural and social theories have been largely applied to men and the pathological explanations have been applied to women (Worrall, 1990; Horn and Evans, 2000). For example Lombroso and Ferrero's work on theorising female offending was based on biological elements. They studied skulls, brains and bones of female offenders and prostitutes and concluded that there were far less female criminals than males and that prostitutes had more anomalies than female offenders or normal women (Lombroso and Ferrero 1895: 85). The discipline of classical criminology was highly criticised by feminists from the 1970's because of its blatant marginalisation of women in the studies conducted by Lombroso and secondly, there was a lack of appropriate gender analysis from when the women were studied and it was studied in a very limited and distorted manner (Smart 1977: 26)

Heidensohn criticised that the ideas carried by Lombroso and Ferraro were fundamental assumptions carried by men (Heidensohn 1985: 96). Heidensohn puts forward a different perspective when she examines how the social understanding of femininity affects women's experience within a criminal justice system. She argues that women tend to be treated more harshly than men do in cases where they do not fit the conventional social norms of being a woman. Heidensohn (1985: 44) also notes, that a female who conforms to the stereotypical gender norm expectation tend to experience less harsher outcomes that female offenders who do not. There are two features that Heidensohn notes in the harshness portrayed at female offenders. Firstly is the double deviant argument (Heidensohn 1985: 46-7): which means that not only has the female broken the law, but she has also offended the "more fundamental norms which govern sex-role behaviour" (Heidensohn 1970: 134 in Heidensohn 1985: 47). This is because a female appearing in court is a very rare occurrence and seems like a less comprehensible idea than a man appearing before the court (Heidensohn 1985:47). The way that females are punished for deviant sexuality and sex roles is the second aspect of harshness towards female offenders (Heidensohn 1985: 47-56). Here Heidensohn identifies four assertions (1985: 48-51); First, courts operate a 'double standard' with sexual behaviour only punishing girls for sexual activities. Sexual behaviours by girls were perceived as morally outrageous and so they are dealt with more punitively. Second, court personnel 'sexualise' female delinquency, exaggerating their offence. Next, 'wayward' girls end up being punished without actually committing a crime. Finally, women and girls who do not comply with conventional female stereotypes receive excessively punitive treatments, creating greater chances of being imprisoned.

Society has changed from the days in when theories put forward by Lombroso and Ferrero were presented, but a lot of criminological theories are still used to justify criminality within the modern criminal justice system. Women have become less oppressed than they were 30 years ago so it would be naive to make the assumption that criminality and females can be explained by one theory. Any crime, whether it was committed by a male or female offender, cannot be explained by just one theory. As established, males and females differ biologically and social influence, such as the stereotypical gender role and the specific role-playing of male and females in their roles is appearing to continue on most families. According to Edwards (1984), 'the enemy is within every woman, but is not her reproductive biology, rather it is the habit regarding it into which she has been led by centuries of male domination' (Edwards, 1984: 91).

It is argued by Miedzian (1992) that testosterone is the main factor in aggression as seen in men. The hormone is seen as being responsible for a lot of male criminality even though many other theories have been developed for alternate theories of crime. However in contrast, over the last25 years, a lot of extensive research has looked at the link between testosterone and aggression. Lloyd's (1995) focused solely on prenatal testosterone predisposing boys to be rougher than girls, concluded it was very difficult to show any connection between testosterone and aggressive behaviour (Lloyd, 1995: 26). Cross-cultural studies of ninety-five societies revealed forty -seven percent of them were free of rape while at least thirty-three societies were free of war and interpersonal violence was extremely rare (Meidzian, 1992: 74). By looking at the figures of the studies of Miedzian and Lloyd, there is evidence suggesting that sociological and environmental factors appear to have a greater level in explaining criminality whether it is female or male.

It has been established that female offenders tend to be treated more harshly in the criminal justice system because of the excessive stereotyping between male and female offenders. Women still only represent a small amount of offenders incarcerated within the criminal justice system, but they are seen as deviant offenders because they have broken their conventional norm of being a female so they must be punished in order for this to stop. Men are seen as violent and dominant and to see men incarcerated and appearing before a court has been normalised. Hiedensohn (1985) has theorised why there is only a small level of females incarcerated while the majority of the female population tends to be law-abiding, but albeit repressed. She notes that women are restricted by societies assumed domestic role when trying to gain an opportunity to commit a criminal offence. Male violence controls women because they have a particular fear of sexual harassment or rape which men use as a form of social control. Women are also less likely to hold positions of power in the workplace and women are highly controlled by the fear of violence so their activities are limited in order to avoid violence (Heidensohn 1985: 47)

Modern society knows more about women and crime than that which was understood 20 years ago. Criminology itself has been an area that has focused on male offending and incarceration and the criminal acts of males which include white collar crime, street crime, violent crime and organised crime (Goodstien, 2000). Many theories of crime have been developed as an explanation about why males offend with little or no focus that see women as criminal or perpetrators of criminal acts. There are substantial differences in the crimes committed by men and women, and the few theorists that looked at female criminality employed gross assumptions about females that were sexist and had no empirical support. Criminology has then applied traditional theories of crime, which explain male criminality, to women. This has created a problem of generalisation because its approach has been tainted by characteristics which explain a male approach to social reality and criminality. In this sense, it has made women invisible in the criminal justice system because they are repressed by a male understanding of crime and criminal offending. This has led a lot of female offenders to experience a high experience of an extremely gendered experience of the criminal justice system.