Name: Shubhangi Singh
Institution: National Law University Odisha
Year: First year, BA.LLB
This article addresses the prevalent problem of gender disparity in the criminal justice system of most countries across the world. It analyzes how the traditionally male dominated systems have led to discriminatory and gender biased laws and regulations causing obstacles in the way of justice for women and people of the LGBTQ community. It sheds light on the special needs and assistance required by these groups either as victims or as offenders and thus suggests the reforms required in the present criminal justice system to make it more gender sensitive and neutral.
KEY WORDS: Gender disparity, stereotypes, prejudices, patriarchal norms, discrimination, stigmatization, victimization, gender-sensitive
The criminal justice system of a country is one of the pillars for ensuring a democratic, egalitarian and just society. A huge drawback faced by this system across most countries of the world however is the historically prevalent practice of gender disparity majorly affecting women and people of LGBTQ community who face a large number of obstacles in the form of discriminatory practices and require special consideration and assistance.
UNDERSTANDING GENDER DISPARITY
What is gender disparity? Gender disparity can be defined as the social process through which people receive unequal treatment and access to resources, opportunities and status solely on the basis of their gender. It adversely affects the well being of marginalized groups like the LGBTQ and women across the globe. For ages gender disparity has plagued the major systems and spheres in society including education, employment, healthcare and the criminal justice system is no exception.
Women and people belonging to the LGBTQ community are the major victims of gender disparity in the criminal justice system and it obstructs their access to justice whether as victims, suspects or prisoners. The existing criminal system in most countries is male dominated i.e designed by men for men without adequate consideration of the needs of women and LGBTQ people. The fundamental issues responsible for this gender disparity include discriminatory criminal laws and procedures, insufficient gender diversity among criminal justice professionals, toxic patriarchal cultural norms and long-established gender stereotypes and prejudices.
STUDYING WOMEN OFFENDERS- A HISTORY OF VIOLENCE & DISCRIMINATION
The globally rising number of women offenders in recent years has been attributed to a number of factors which affect women more disproportionately than men. A strong link has been traced back to prior experience of abuse and violence and coercion into crime by an abuser. The illegality of abortion and other acts treated as immoral such as adultery or running away from home in certain countries and being detained due to immigration or for protection purposes can also be seen as contributing to this increase in numbers. Thus, a large number of these women are not an actual threat to society but victims of a history of discrimination and abuse at the hands of their families or society in general.
In addition to this, a myriad of the present criminal laws and procedures are based on orthodox gender norms and stereotypes and are discriminatory in nature. The substantive criminal codes in many countries are unfair and biased with respect to women and punish them more harshly for acts considered immoral such as adultery, prostitution and abortion. Many fail to meet requisite standards when it comes to criminalizing acts that exclusively affect women such as domestic violence, abuse and genital mutilation. Procedural criminal codes too are not adequately framed to consider acts of self defense and mental abuse suffered by female victims of domestic violence. They require considerable amount of modification and revision to better suit the needs of women and extend proper support and protection to the victims.
A number of reports have established the connection between violence against women and their imprisonment and stated that subjection to agonizing level of harassment can cause a number of personality disorders and push women towards substance abuse and violent behavior. Domestic abuse at the hands of a partner too can provoke women to use force for protection as pointed out by a number of studies that show that a major percentage of women convicted for violence were held guilty for murder of a male partner or family partner who abused for an extended period. There is a huge lack of legal provisions in the existing judicial mechanisms with respect to self defense and provocation and most of these are ill-equipped to deal with victims of abuse. Criminal justice systems across the world have failed these women by overlooking the psychological condition and trauma faced by them due to a history of violence and abuse.
UNEQUAL ACCESS TO JUSTICE
The historical domination of men and lack of gender diversity in the judicial systems has led to a number of gaps in justice delivery by neglecting the obstacles faced by women at different stages of the criminal justice system.
Women may face challenges in the form of illiteracy, lack of awareness about legal rights and remedies or inadequate financial resources in order to seek redressal from the criminal justice system. Women with children will face a different set of struggles on being detained or arrested. They are also at a risk of facing violence or sexual harassment at the hands of the male dominated staff of state officials. Most policemen have not received training in gender sensitive methods and procedures which further causes difficulties for women. During the course of investigation or interrogation, they are more likely to be subjected to ill treatment or coerced into admission of guilt. The stage of trial too could be challenging for accused women due to lack of access to legal representation and advice. They may need special types of legal aid in order to deal with matters like family and children as well. The lack of proper legal representation could lower the chances of bail for women. The heavily burdened judicial system and cumbersome procedures may also cause greater delay in administration of justice and longer detention period. The substandard condition of social services and the lack alternatives to imprisonment in light of women’s backgrounds also serve as major obstacles. Imprisonment leads to a significant number of challenges faced exclusively by women and it creates a dire need for gender specific hygiene and health care services especially with respect to pregnant women or women with children. It also causes a risk of abuse and harassment and contributes to stigmatization of women in the society.
ROLE OF PREVALENT GENDER STEREOTYPES
Apart from challenges posed by the institutionalized systems and procedures of criminal justice, women often face different forms of discriminatory behavior which stems from deep rooted gender stereotypes, prejudices and biases against them. This can affect the attitude and decision making of professionals involved in the male dominated justice delivery system. It has been observed that women whose behavior is not in line with the conventional gender roles in society often face such prejudiced and bias behavior and this can be a major obstacle in the way of a fair trial. These gender stereotypes can affect accused women in different ways. Women who are involved in acts such as child abandonment, prostitution or assault which are believed to be against the norms and roles set by the society for women, may face the risk of stricter treatment or punishment than male offenders.
Contrarily, the prevalent patriarchal and paternalistic attitudes may influence professionals into reducing the prescribed punishment on the account of perceiving women as the weaker or more passive sex who are more vulnerable to manipulation than men and thus must be held less accountable for their offences. This kind of orthodox outlook can be discriminatory towards men committing similar offences and promote a backward mindset with respect to the status and rationality of women. It is vital for judges and lawyers to defend women criminals based on logically backed arguments rather than those influenced by such gender stereotypes and patriarchal cultural norms.
WOMEN IN PRISONS- NEEDS AND CHALLENGES
Women in prisons face more serious challenges and risks as compared to men since most of these prisons consist of architectural structures, safety regulations, healthcare measures and work related services that are more suited to the needs of men convicts. This in addition to the higher risk of facing abuse or violence at the hands of officials or fellow prisoners creates a huge disadvantage for women prisoners.
Imprisonment of women who are mothers has catastrophic consequences for them and their families. Women make up a small part of the overall jail population, hence there are fewer jails for them around the world. As a result, women are frequently imprisoned far from their homes and families. Incarcerated mothers complain about not being able to visit their children, and children are frequently allotted to state custody when a mother’s imprisonment causes the family to break down. Women in jail face disproportionate stigma as a result of their criminal involvement, and in some circumstances, their families tend to forsake them. Women imprisoned due to substance abuse are mostly involved in using drugs as a medication to cope with trauma. Their mental and physical health becomes worsened with incarceration and their chances at getting access to the required healthcare provisions and mental healthcare are much lower. These women are often coerced into trafficking and forcefully involved in the drug supply chain by an abuser. Such women hardly have any financial resources to pay any fine or bail. They require proper assistance and rehabilitation facilities in order to recover and give up substance abuse and become reintegrated into society.
Women inmates are made even more vulnerable when their specialized reproductive, health, and hygiene needs are not provided for adequately. In jails, women have poorer access to health-care services than men. Women have unique health-care needs that extend beyond pregnancy, prenatal, and postnatal care to include reproductive and sexual health care, as well as breast and cervical cancer screening. In order to ensure the well-being and dignity of women and girls in detention, proper sanitation facilities, as well as services and amenities relevant to women and girls must be provided.
LGBTQ COMMUNITY’S STRUGGLE WITH THE CRIMINAL JUSTICE SYSTEM
People who identify as LGBTQ have constantly faced more challenges and hurdles with respect to their treatment by the criminal justice system whether as victims, accused or offenders. According to different studies, people belonging to LGBTQ face a greater risk of physical and sexual abuse solely due to gender. Despite the high number of cases of harassment and abuse against these individuals, a large number of such crimes go unreported or underreported. The major causes behind this include fear of retaliation, a lack of adequate mechanisms to safeguard victims and witnesses, and a lack of faith in the existing criminal justice systems.
LGBTQ victims of homophobic and transphobic acts often face discriminatory behavior from police officers who either ignore such complaints or register them as minor offences. Constant prejudiced and biased treatment as well as secondary victimization at the hands of the very people entrusted with duty to prevent crimes and maintain security has led to the breach of trust and faith among the LGBTQ community with respect to the criminal justice system. These individuals are also at a higher risk of ill treatment and sexual violence when detained in police custody or prisons.
Transgender persons face an even broader set of struggles with respect to imprisonment and custody. Often they are detained in prisons on the basis of their birth sex instead of the sex pr gender they identify with causing the problem of their legal recognition. LGBTQ persons who were victims of violence and sexual abuse may also require special assistance or help in the form of psychological support however they are often discriminated against with respect to access to the most basic prison services and facilities.
Therefore, women and the LGBTQ community have always been historically discriminated against and denied equal access to justice due to the male dominated traditional criminal justice systems and practices across the world. The problem of gender disparity in this system must be addressed with proper consideration of the special needs and requirements of these groups and through reformed gender neutral laws and regulations.