Sex and Criminal Justice

Female Offenders

Men account for the vast majority of people under the supervision of the criminal justice system. Nevertheless, the female presence in the system is growing at a significantly faster rate than the male presence, 6.4 percent versus 3.9 percent in the past ten years in the jail population alone. More than 100,000 women were under the supervision of prison authorities in 2003, with an average daily jail population of 81,650. Twenty- three percent of all probationers, a total of 936,000, were female, as were 13 percent of all parolees, or 97,000 women. The female arrest rate rose 1.9 percent in that year, whereas male arrests decreased 0.4 percent. The result is more than 1,000,000 females subject to some form of supervision, with more than 2,000,000 having been arrested.

Racial, ethnic, and class disparities characterize this population. Thus, again in 2003, African- American females were five times more likely than white females to be incarcerated, and twice as likely as Hispanic females, even though Hispanic female inmates rose 71 percent between 1990 and 1996 alone. In 2003, approximately 58 percent of female inmates were minorities. The average incarcerated woman is thirty-one years old, undereducated, unemployed at the time of arrest, and unmarried. She is three times more likely to have suffered physical abuse and six times more likely to have suffered sexual abuse after age eighteen than her male counterpart. Only approximately 18 percent of all arrests for violent crime are of women. Drug offenses thus fuel most of the growth, accounting in New York, for example, for 91 percent of the rise in female prison sentences between 1986 and 1995. Drug or property offenses combined account for the bulk of criminal convictions of females. Women of color are once again affected disproportionately by the war on drugs; notably between 1986 and 1991, the number of women in state prisons for drug offenses rose 828 percent for African Americans, 328 percent for Hispanics, and 241 percent for whites.

Of those females who are incarcerated for acts of violence, many did so against a partner who had sexually or physically abused them. Abused women often turn to drug abuse, which is itself linked to criminality, to avoid dealing with deeper traumas.

Juvenile girls and young women, who are often running away from abusive homes, may become involved in gangs, although they likely constituting only 10 to 22 percent of all gang members nationwide. Female gang members are more likely than male members to come from families with alcoholic, drugaddicted, or criminally involved siblings or parents. Most female gangs are male gang auxiliaries, although independent ‘‘girl gangs’’ may have become more common and perhaps more central to drug dealing and violence in the 1990s.

Because so much female violent crime is a reaction to abuse, social science studies on the etiology and impact of such abuse have often been seized on by lawyers to aid in crafting their clients’ defenses. Perhaps the best-known evidence of this kind is a psychologist’s testimony about battered woman syndrome (BWS) and its variants, evidence generally admissible in most jurisdictions. BWS advocates argue that the abused’s experience alters her perceptions, thus notably helping to support a self-defense claim (usually requiring that she actually and reasonably perceived herself as facing imminent danger of death or serious bodily injury) or at least a partial defense, perhaps mitigating the crime from murder to manslaughter on grounds of ‘‘extreme emotional disturbance.’’

Prostitution is another important category of female criminality. Although there are occasional crackdowns on the male customers (‘‘johns’’), law enforcement policy in this area favors arresting the prostitutes or, where feasible, their male pimps or female madams. In the wake of the AIDS epidemic, many states have passed laws targeting prostitutes who are repeat offenders for enhanced penalties, despite the lack of scientific evidence that female prostitutes are an important source of transmission of the disease in the United States.

Women and their children also often face harsh Collateral Consequences from current Sentencing practices. When males are incarcerated, their children are likely to be raised by their mothers. But when females are incarcerated, the children’s care is usually shifted to friends, relatives, or foster care; less than one-third of them reside with their father. The federal system is especially likely to discount family ties in imposing sentences. Yet even an eighteen-month prison sentence can be ‘‘a death penalty’’ for parental rights, given the Adoption and Safe Families Act’s mandate of termination proceedings if a child spends fifteen of twenty-two months in foster care, unless certain specified circumstances exist. There are too few people willing to adopt such children, and foster care may not necessarily be better for these children; a Bureau of Justice Statistics Survey found that 87 percent of female prisoners whose childhood was spent in foster care or institutions report being sexually or physically abused. Separation of children from their parents can lead to guilt, anxiety, anger, depression, shame, and fear, and the children of the incarcerated are more likely than other children to offend. Furthermore, even after release, a single mother convicted of a drug-related offense who avoided termination of her parental rights will in most states be denied federal food stamps, cash assistance, public housing, or aid in paying for private housing or an education. Her conditions of release, such as working or receiving drug treatment, rarely take account of her childcare responsibilities, perhaps resulting in reincarceration for technical violations of probation or parole. Numerous commentators thus worry that harsh sentences for nonviolent female offenders merely encourage increased criminality among them and their children.

Women as Victims of Crime

Females, especially the young, are far more likely than males to be victimized by crime, with most victimizers being male. There are racial disparities as well, the violent crime victimization rate for white females notably is 40.9 per 1,000 females in the population but 44 for Hispanic females and 52.3 for African- American females. Women, are, however, far more frequently victimized than men for particular types of violent crime, with 98 percent of victims of rape and 81 percent of victims of attempted rape being females older than the age of twelve. Women are four times more likely to be stalked and about three times more likely to suffer physical abuse by a spouse or companion than are men. Nearly twothirds of violent crimes against males are committed by strangers, whereas the corresponding number for females is but one-third. Most victimization of women occurs in their homes or those of friends, relatives, and neighbors rather than on the street. There is reason to believe that these numbers underestimate the absolute and relative victimization rates for women.

Rape is perhaps the most infamous of crimes against women, ‘‘date rape’’—sexual assault involving individuals who knew each other—is especially difficult to prove. Although the studies done on the incidence of date rape have faced substantial criticisms, many converge on similar results: large percentages of women, often approximately 25 percent of the total, are estimated to have been victimized by rape or attempted rape, with more than 75 percent of their assailants being nonstrangers. The primary issue in these cases is whether the women consented and, if they did not, whether the men should reasonably have known that. Historically, the law created significant formal obstacles to conviction in rape cases, requiring corroboration of the victim’s testimony; admitting evidence of her prior consensual sexual involvement with other men, both to prove her consent in the case at hand and to call her credibility into question; and specially instructing the jury to be cautious in its evaluation of the victim’s testimony. Modern statutes and evidence rules, including ‘‘rape shield’’ statutes, frequently forbiding reference to a victim’s reputation as promiscuous or reference to specific instances of her specific prior sex acts, generally reject these requirements. Most states still require proof of ‘‘force’’ or its threat, although some have eliminated that element of the crime. Traditionally, a showing of force required proving so much force as to overcome a woman’s ‘‘utmost’’ resistance, generally meaning resistance to the point of endangerment of death or serious bodily injury. The law in many states later altered this requirement to showing a mere ‘‘reasonable’’ resistance, and some states have entirely eliminated any overt proof of the accused’s use of force. These formal legal changes were largely prompted by an organized rape law reform movement, an arm of the broader feminist movement.

Many feminists saw the legal hurdles to proving rape as a way of, in practice, legalizing male sexual violence against women. Rape reformers hoped that formal legal changes would improve this state of affairs. Reformers also often gained access to counseling for rape victims and their right to submit victim impact statements at Sentencing where convictions did occur. A number of states have also adopted statues permitting the use of an accused rapist’s prior acts of sexual violence against him in court to prove his guilt of the currently charged rape. Despite these efforts, various social science studies conclude that legal reform has had modest or no effect in improving rape reporting and conviction rates.

Several explanations have been offered for the failure of the rape law reform movement. Perhaps, most importantly, jurors continue to want corroboration, victim resistance, extreme uses of force, and ‘‘proper’’ stereotypical female behavior as preconditions for believing the woman’s version of events and for convicting an accused rapist, even where the law no longer requires such proof. The severity of rape shield and other reform legislation also varies widely, with some statutes permitting sufficient numbers of exceptions or vesting the trial judge with sufficient discretion as to result in the continued admissibility at trial of a woman’s sex life as relevant to the consent determination.

Furthermore, battering of female spouses had long been viewed in the United States as a necessary evil for disciplining wayward wives and part of the sacred precincts of ‘‘private’’ family life. Only in the 1970s did battering come to be seen as a serious social problem meriting the criminal justice system’s involvement. Yet this trend has not always been enthusiastically embraced by either the broader public or the police, who are charged with enforcement. This may partly stem from the senses that victims staying with their batterers are partly to blame for their plight and that intrafamilial dysfunction is better addressed by treatment and assistance programs than by criminalization. Victims may also refuse to cooperate because of fear of retaliation by their batterers, fear of losing their economic contribution, or belief that the mere threat of prosecution will solve the problem.

Although police originally generally did not intervene in abuse cases, in the 1960s and 1970s, they started using mediation, reconciliation, or agency referrals as common practice. Fifteen states had, however, moved to mandating arrest laws by the 1990s’ start, with all but a few remaining states amending their laws to permit warrantless misdemeanor arrests in Domestic violence cases. Nevertheless, even when arrest is legally mandated, the number of arrests may not increase significantly because of police discretion in deciding what cases qualify and in police resistance, particularly where officers perceive a low likelihood of reprimand. Women also face disproportionate victimization by the crime of stalking, which is committed by the pursuit or harassment of a victim even in the absence of actual physical harm. The relatively new rise of antistalking legislation has resulted in its adoption in all states, the District of Columbia, and the federal government. Although the statutes vary, they generally require repeated harassment that would cause a reasonable person to fear for her safety or that of a family member. The harassment must be intentional, and some states require that the threat be ‘‘credible.’’

Stalking and Domestic violence are closely linked, with 59 percent of female victims being stalked by intimate partners and 81 percent of those so stalked also being physically assaulted by those partners. Only about half of female stalking victims report the crime to the police, with only 12 percent of those crimes being prosecuted. Commentators have suggested that the low stalker prosecution rates demonstrate that the justice system is not taking the crime seriously enough, with police too often viewing stalkers as ‘‘pathetic Romeos’’ rather than criminal offenders.

ANDREW E. TASLITZ

References and Further Reading

• Gertner, Nancy, Women Offenders and the Sentencing Guidelines, Yale Journal of Law & Feminism 14 (2002): 291.
• Mauer, Marc, et al. Gender and Justice: Women, Drugs, and Sentencing Policy (1999) (a report of the Sentencing Project)
• Raeder, Myrna, A Primer on Gender-Related Issues that Affect Female Offenders, Criminal Journal 20 (2005): 4.
• Rafter, Nicole. Encyclopedia of Women and Crime, 2003.
• Taslitz, Andrew E. Rape and the Culture of the Courtroom, 1999.

See also Domestic violence; Marital Rape