Feminist criticism of criminal law and criminal justice system has proliferated over the past decade and has touched issues of doctrinal, practical, and theoretical nature. These critiques and the related proposals for reform are usually acknowledged to be controversial. Yet, across a wide range of issues, the feminist position has its basis in a simple fact that cannot be considered debatable: criminal law is, from top to bottom, preoccupied with male concerns and male perspectives.
Feminist criminology emerged in the late 1960s and early 1970s and this can be accredited to the second wave of feminism movement which had helped in highlighting the issues which affected women with regard to crimes in the public domain. This issue of women and crime has been viewed and discussed mostly from the male perspective. However, feminist perspectives in criminology have greatly impacted the understanding of female perpetrators and victims of crime. This relationship between criminology and feminism is infused with ample exploration of methods, policies, epistemology and discipline.
Over the course of years, the scholars have time and again questioned the gender blind assumptions in the field of criminology so as to accommodate the experiences and the voices of women. Women have put across varied arguments in the field of criminology which take into consideration a holistic point of view with regard to women being perpetrators and victims of crime.
criminal law is, from top to bottom, preoccupied with male concerns and male perspectives.
After decades of criminologist Lombroso’s descriptions of female criminals being more masculine and biologically abnormal being rejected, the Indian courts have resurfaced with more gender-oriented reasons to condone them for the crimes they commit. This debate is relevant in as much as there’s a widespread unrest and a vehement demand from the men’s rights groups to punish women offenders once their offence is proved in the court of law. Interestingly feminists or more specifically feminist criminologists have never seen these sentencing disparities as a matter of celebration.
Female conformity to law and culture and a compliant nature in general is oft-supported by statistical evidence like NCRB in India that indicates low female criminality rate as compared to men. The argument gets its strength from describing women as biologically gentler, more passive and emotional, and therefore criminal behaviour becomes doubly abnormal for women. While low rate of criminality in women is not an issue, the institutionalisation of sex-based behavioural segregation is. I am going to discuss this aspect of criminal responsibility when it comes to women because the present narrative that only discusses the reasoning of the courts to be ‘gender-roles’ oriented, which is inadequate to address the deeper issue.
The Supreme Court of India’s take on women offenders has become a cause of furor in recent times. In the case of Nirmala Devi, for instance, the court awarded less punishment than prescribed for the offence in the law to a woman convict so that she could take care of her familial duties as a mother. Besides the obvious weightage given to gender roles of women in this matter, interestingly the court also observed, “Women are competing with men in the criminal world; they are emulating them in all the crimes; and even surpassing men at times…”
Myth-making, stereotyping and gender essentialism, this statement has all of it. Even while a woman commits a crime, she’s emulating men. Simone De Beauvoir in The Second Sex has also described this aspect of women being the weaker sex, in as much as men view women as emulating their ways to gain validation in the society; since the male sex is superior and absolute. For criminology, criminal law, or people for that matter, crime has always been associated with masculinity – crime is male, whilst conformity is female.
For criminology, criminal law, or people for that matter, crime has always been associated with masculinity – crime is male, whilst conformity is female.
Feminist criminologists have challenged this traditional notion that women are intellectually less capable than men. Take scholars like Charles Darwin, Friedrich Nietzsche, Aristotle, Lombroso and many more who have excluded women from their discourses about science and society. Rationality, for long, has been represented as an attribute of the male sex, while emotions and subjectivity that of the female sex. Therefore, by tradition, women are to be studied, not become the creators of theories and ideas which is also the reason why feminism and feminist theories in various fields are subject to so much criticism – how can a woman evolve theory, backed by logic and evidence?
This is not to discredit the extensive work done many female thinkers across centuries, but evidentially, there has been a well-constructed disjunction between women and logic, created by men in these spaces (art, technology, philosophy, politics, law). Of course, over the years feminist scholars have questioned these biases and since then have constantly worked in terms of critical thinking and deconstruction of popular notions related to the female sex and gender as a construct to subjugate women.
As far as criminal law is concerned, it assigns criminal liability to offenders on the basis of various degrees of mens rea, also called guilty mind, a requisite since it makes sure that the accused had cognition to commit the crime. Possessing mens rea (criminal intent) to wilfully commit a crime requires free will, which women don’t have as per this specific historical context which denies them from making a rational choice.
In the backdrop of the discussion about women and rationality elsewhere, it’s clear that a guilty mind cannot be attributed to certain women as per the popular criminological and psychological ideas. While popularly known as the battered woman-syndrome, feminist criminologists like Alison Young have argued that in order to qualify as perpetrators, women must be able to prove that they were victims first. Many studies conducted by feminist scholars like Carlen, Nagel and Weitzman in the 70s-80s period, affirmed that women were being incarcerated more as punishment for being a deviant woman they were than for the crimes they committed, with single mothers, sex workers and women from a poorer socio-economic background receiving harsher sentences.
If you’ve watched the movie Provoked, the context of the issue will become clearer to you. Aishwarya Rai’s portrayal of Kiranjit Ahluwalia, a battered woman abused by her husband for years is derived from the actual case of R vs. Ahluwalia. Throughout the judgement Kiranjit has been described as a dutiful wife, loving mother and a sacrificial woman in general. Her sacrifices in terms of leaving her family in India to live with her husband, giving up her career, are portrayed in a manner so as to eulogise this perfect woman, only a victim of her circumstances.
Her husband abused her, tortured her and was also in an adulterous relationship with someone else. The judgement describes this situation as something that made Kiranjit psychiatrically disturbed, having suffered years of torture in the hands of her husband, which made this an apt case for attracting diminished responsibility. In order to empathise with her, the court had to familiarise with her in terms of women are generally expected to do. Because criminality is considered to be against the feminine ethos, there have to be exceptional circumstances that make her behave like a criminal.
Interestingly, it is not only the courts and the law-makers, women themselves have accepted the notion of being the passive sex, and that violence and crime are against their nature.
It reinforces normalises male-violence and stereotypes men as being the perpetrators while maintaining the idea that women are passive victims of their circumstances
Consider the Nirmala Devi case in this light now. The court in that case also stated that the women involved in terror activities cannot be condoned, they shall be treated at par with male terrorists as far as sentencing is concerned. But why would women, many of whom are get into these terrorist groups due to varied socio-economic factors – all of who belong to the same gender – not receive leniency in sentencing? If gender indeed is no consideration for the purposes of sentencing as reiterated by courts a lot times, it shouldn’t be selectively awarded to women who men see as conforming females.
This is not to downplay the importance of mitigating factors while giving sentences, but to make sure that there’s at least no disparity in sentencing between women who come from different socio-economic and cultural contexts merely because some fit into this criteria of ‘ideal womanhood’ and others do not. There’s a reason why a female criminal’s socio-cultural background is often given a lot of weightage than a male offender’s, and it is definitely not a matter of celebration. Law-breaking has become a normalised feature of exemplification of masculinity. Consider K.M Nanavati’s case, where violent response from husband on discovery of his wife’s infidelity was viewed as a normal behaviour of a ‘betrayed’ man by some people. His vengeance was not legally justified, but normalised nevertheless.
It is probably difficult to completely justify the argument in a limited space, but a reading of Alison Young’s Imagining Crime, can give the readers a comprehensive understanding of this issue. The author has discussed the essence of feminist jurisprudence in the context of criminal law and criminology, and is one of the best books out there on female criminality and the myth-making related to it.
When these stereotypes about women play out in the judgements, it harms both the sexes equally. It reinforces the idea that male-violence is normal, and stereotypes men as being the perpetrators while maintaining the idea that women are passive victims of their circumstances, or just of their ‘disturbed’ minds even while committing crimes.
Featured Image Source: The Times Of India