Group 3: Women and the Law
Is the law really blind when it comes to gender?



Lady Justice
Lady Justice




Female Criminals:

The scale of the sex differential far outranks all other tracts which have been supposed to distinguish the delinquent from the non-dilinquent population. It is surely, to say the least, very odd that half the population should be apparently immune to the criminology factors which lead to the downfall of so significant a population of the other half.”-Barbara Wooton

Arrests








by Sex, 2009
[12,371 agencies; 2009 estimated population 239,839,971]
Offense charged
Number of persons arrested
Percent male
Percent female
Total
Male
Female
TOTAL
10,741,157
8,026,796
2,714,361
74.7
25.3
Murder and nonnegligent manslaughter
9,775
8,755
1,020
89.6
10.4
Forcible rape
16,442
16,234
208
98.7
1.3
Robbery
100,702
88,783
11,919
88.2
11.8
Aggravated assault
331,372
258,467
72,905
78.0
22.0
Burglary
235,226
200,117
35,109
85.1
14.9
Larceny-theft
1,060,754
597,246
463,508
56.3
43.7
Motor vehicle theft
64,169
52,761
11,408
82.2
17.8
Arson
9,509
7,892
1,617
83.0
17.0
Violent crime2
458,291
372,239
86,052
81.2
18.8
Property crime2
1,369,658
858,016
511,642
62.6
37.4
Other assaults
1,036,754
767,018
269,736
74.0
26.0
Forgery and counterfeiting
67,357
41,932
25,425
62.3
37.7
Fraud
162,243
92,850
69,393
57.2
42.8
Embezzlement
14,097
6,920
7,177
49.1
50.9
Stolen property; buying, receiving, possessing
82,944
65,644
17,300
79.1
20.9
Vandalism
212,981
174,477
38,504
81.9
18.1
Weapons; carrying, possessing, etc.
130,941
120,430
10,511
92.0
8.0
Prostitution and commercialized vice
56,640
17,203
39,437
30.4
69.6
Sex offenses (except forcible rape and prostitution)
60,422
55,085
5,337
91.2
8.8
Drug abuse violations
1,305,191
1,062,777
242,414
81.4
18.6
Gambling
8,067
7,163
904
88.8
11.2
Offenses against the family and children
87,889
65,557
22,332
74.6
25.4
Driving under the influence
1,112,384
860,689
251,695
77.4
22.6
Liquor laws
447,496
319,364
128,132
71.4
28.6
Drunkenness
471,727
393,586
78,141
83.4
16.6
Disorderly conduct
518,374
379,059
139,315
73.1
26.9
Vagrancy
26,380
20,725
5,655
78.6
21.4
All other offenses (except traffic)
2,946,277
2,249,656
696,621
76.4
23.6
Suspicion
1,517
1,093
424
72.1
27.9
Curfew and loitering law violations
89,733
62,229
27,504
69.3
30.7
Runaways
73,794
33,084
40,710
44.8
55.2
Criminal Justice Service Divison. U.S. Department of Justice, Federal Bureau of Investigation. (2009). Arrests by sex. Retrieved from http://www2.fbi.gov/ucr/cius2009/arrests/table_guide.html


Theories on why women commit crimes:

Crime rates have been increasing, and though crimes are disproportionately committed by men, women are now increasingly represented in official crime statistics (Pollack,2001). The following are the leading theories to explain this rise in female’s committing crimes and a critique of those theories.


Masculinity Thesis

This perspective reasons that, due to the evolution of women’s social roles following the women’s movement, there has been a masculinization of female behavior (Simon & Ahn-Redding, 2005). With this logic, it is hypothesized that women will continue to engage in aggressive, criminal behavior till their rates equal those of men. This theory was at its height in the 1960’s and there for while in the 1960’s it was popular belief that female criminals had an excess number of male chromosomes (Berger, 1989). A critique of this would be there seems to be little evidence empirically that shows a relationship between pro feminist or maculinized behavior in offenders.

Opportunity Thesis

This thesis states that there is not a clear difference that makes males or females more prone to commit crimes; rather it is the social environments and opportunities that determine the likelihood of such acts. For example, as women gain employment in skill positions, then they will have more opportunity to commit employment related crimes. A critique of this viewpoint is that women and men in modern American society are now allotted nearly equal opportunities in the job force; however, the rates at which they commit job related crime are still not equal(see chart above), as men continue to greatly outnumber women in white collared crime. Additionally, in looking at the motivation or execution of white collar crime, that women’s offenses involve significantly less financial gain than those of men (Simon & Ahn-Redding, 2005). Another point to be made is that there are studies that show that a liberated attitude towards gender roles in the occupational sector do not have a relationship with self reported delinquency (Berger, 1989). Also, it has been found that traditional male-female role beliefs were associated with an increase in delinquent behavior (Berger, 1989).

Economic Marginalization Thesis

The opposite of the opportunity thesis is the economic marginalization thesis, which attributes female crime to the absence rather than the accessibility of employment. The support for this theory lies in the fact that a large percentage of female crime is committed by those who are either not employed or employed with poor pay (Simon & Ahn-Redding, 2005). Also, because most female crime is petty property crime which seems to support that economic insecurity is a motivating factor. Critiquing this theory it could be brought up that women’s crime rates have increased rather than decreased with women receiving more upward mobility.

Chivalry Thesis

This thesis looks at the concept that it is not the behavior of women that has changed but the reception and reaction by officials to female crime. It hypothesizes that in response to the women’s movement asking for equal treatment, that police and judicial officials have complied and are less lenient on women now. But this theory somewhat marginalizes other factors like surveillance changes(specifically advancements in technology), changes in sentencing practices(for example a shift away from indeterminate rulings and scrutiny over judge’s discretionary powers), and crime reporting changes that could all have something to do with the rise in female crime despite the change in chivalry. Another point that undermines this thesis is that the statistical rates of female arrests vary by the type of offense, and if the chivalry of the arresting officers is the reason for increased arrests then why are they not punishing women more in every category of offense.



Though it is probably a combination of all the above listed theses contribute to the assertion that there is a rise in crime committed by women. The psychological masculinization of women, increased employed participation, and the more equal response to female crime all offer possible explanations all play a part in understanding why women commit the crimes they do.


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More Information:
  • Female offenders are more likely than male offenders to be heavy users of drugs(Pollack, 2001).
  • Female criminals, regardless of their crime, often have a history of prostitution(Motz, 2001).
  • Female criminals fall under the ruling of Buck vs Bell(1927), which ruled in favor of forced sterilization for “unfit mothers.” Nowadays forced contraception is used(Pollack, 2001).
  • Some clinical psychologists believe that female criminology stems from perceived violence against the body. Hypothesizing women to commit crimes against themselves(an example being prostitution), crimes against others(an example being a battered wife killing her abusive husband), and crimes against children(children are seen as an extension of a women’s body since women bear children) because of this(Motz, 2001).



‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍Female Judges‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍‍
external image lady-justice1.jpg

Can women judges make a difference in the American justice system?
  1. Life experiences, such as discrimination in education and careers, and obligations to their children, spouses, and households that mirror that of other aspiring, working women will have the potential to counterbalance the generally represented perspective of the white male in the federal court (Martin, 2009) because “the male perspective is not a neutral norm,” as stated by Christine Boyle (L'Heurex-Dube, 1997a). Justice L’Hereux-Dube emphasizes the need to incorporate gendered experiences and stories of women litigants (L'Heurex-Dube, 1997a) to produce a decision that is individualized. She goes on to suggest that this is based partly on a judge’s own gendered experience (L'Heurex-Dube, 1997a) instead of relying on stereotypical and gender-biased conventions.
  2. According to a survey of lawyers and judges in Florida, female judges are more mindful of gender inequalities, observed more gender biases in legal settings, and had a stronger connection between experiences of gender bias and feminist perception (Martin, Reynolds, & Keith, 2002).
    1. Statistics

      1. 96% of female judges appointed by Carter were married, divorced, or widowed (Martin, 2009).
      2. 91% of female judges appointed had children (Martin, 2009).
      3. 50% of women judges had children under 18 years old, compared to the 28.5% of men with children under 18 years old (Martin, 1990).
      4. Of the 75% of women and 42% of men appointed by Carter to complete the survey about their personal experiences of conflict between family roles and career roles, it is reported that women had 2.4 children and men had 3.2 children (Martin, 1990).
        1. Men reported that they felt fewer feelings of conflict between their careers and their parental roles than women (Martin, 1990).

external image Judging.jpg

Do women judge differently than men?

  1. When confronted with issues that are an immediate concern to women, female judges act as representatives (Feenan, 2009). However, there appears to be no difference between male and female judges on issues of: reproductive freedom, affirmative action, maternity rights, sexual harassment, and gender discrimination (Walker & Barrow, 1985).

  2. There have been studies of courts that revealed no significant gender differences (Gottschall, 1983; McCormick & Job, 1993; Songer, Davis, & Haire, 1994; Westergren, 2004). However, the absence of differences may be due to the small samples, as there have also been studies to show these differences:
    1. Female judges are 11% more likely to vote for the plaintiff and uphold employment discrimination claim (Farhang & Wawro, 2004).
    2. Female judges voted less often than their men counterparts concerning policies that affected minorities (Walker & Barrow, 1985).
    3. American, female judges are more likely to find unconstitutional laws affecting homosexual Americans (Smith, 2005).
    4. Female judges enforced tougher sentences for certain offenses (Steffensmeir & Hebert, Social Forces) and are more willing, than male judges, to dissent (Belleau & Johnson, 2008).

  3. In a study (Martin, 2001 )that included simulated cases regarding divorce, abortion, domestic violence, maternity leave, and sexual harassment to assess the correlation of feminism in decisional, judiciary outcomes it was found that:
    1. Women feminists were most likely to be actively pro-woman in their decisions.
    2. Women non-feminists and men feminists were very similar.
    3. Men non-feminists were least likely to be activists.
    4. 52% of non-activist, Republican, male judges supported the woman plaintiff.
    5. 89% of feminist activist, Democratic female judges support the woman plaintiff.

  4. Panel decisions were moderately affected by gender, as the presence of a woman on the US state courts was a predicting value in deciding the outcome of sex discrimination claims (Gryski, Main, & Dixon, 1985). The presence of a female judge on three-judge federal appellate panels in cases concerning sex discrimination or sexual harassment was a predicating factor as to the increasing probability that a male judge would support the plaintiff (Peresie, 2004-2005).


Female Lawyers
sc-wla060.jpg

History

Following the civil war, women were inspired by the civil rights movements to pursue all kinds of professions, including law. Many were denied based on constitutional and religious notions that women’s roles were strictly designated to the home, performing duties as wives and mothers, yet men were encouraged to pursue all types of careers. Also, women were too emotional and too delicate to witness all the atrocities that accompany the law profession. A famous case was Myra Bradwell’s fight for bar privileges in the Supreme Court, which was denied by U.S. Supreme Court Justice Joseph Bradley in 1873. The only way that women could succeed in gaining these rights was by constant petitioning state legislatures and even Congress. In 1879, Congress passed an antidiscrimination bill that would allow women to be accepted into the federal bar. Years later, two women by the names of Ellen Mussey and Emma Gillett were able to start a law school for women in Washington D.C. As the states followed the federal government’s example, women began to open their own practices. Most of the cases that they received were minor infractions, such as damage claims, bill collections, and divorces. However, Belvia Lockwood, who entered the Washington, D.C. bar, took on criminal clients of all kinds and won many of them, elevating the woman’s status as a successful lawyer. In 1907, a woman named Catherine McCulloch was voted justice of the peace for Illinois, one of the first females to win that title (Norgren, 2010).
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Catherine McCulloch (Norgren, 2010)

Present Day

Women make up 44% of the students who apply for Law school in 2008 (Department for Professional Employees, 2010). However, not all who apply for law school get in or finish. This could be a factor in why women comprise only 31% of practicing law as a profession. They make up 19% of lawyers in a partnered firm and 15% of lawyers in an equity partnered firm. Out of the 200 largest law firms, women only cover a staggering 6% of the legal population. In corporations, such as the Fortune 500 General Counsel, women make up 18% of the practicing lawyers. From this small number of women, 87.2% are caucasian, 7.4% are African American, 3.2% are Hispanic, and 2.1% are Asian American or Pacific Islander. The majority of the women practicing law most likely hold the title of associate. They make up 45.4% of associates and 47.4% of summer associates (American Bar Association, 2011).
The Median Annual Salary of all Lawyers 9 Months after Graduation
Employer
Salary
All graduates
$68,500
Private practice
108,500

Business
69,100
Government
50,000
Academic/judicial clerkships
48,000
SOURCE: National Association of Law Placement
(Bureau of Labor Statistics, 2010)

Problems

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In general, women only received about 80% of the weekly salary that men earn in any profession. The discrepancies are higher based on age and race. Women over the age of 25 earn only 78% of the income of their male counterparts. African American women earn only 71 cents for every dollar earned by men and Latino women earn about 65 cents for each dollar earned by men (Department for Professional Employees, 2010). Comparing that to the weekly salaries of male and female lawyers, there is a larger discrepancy between male and female lawyers than the average discrepancy reported in most professions.
Average Weekly Salary of Lawyers Reported by Year

2002
2003
2004
2005
2006
2007
2008
2009
Men
1547
1610
1710
1748
1891
1783
1875
1934
Women
1073
1237
1255
1354
1333
1381
1509
1449
Women's Percentage
69.4%
76.8%
73.4%
77.5%
70.5%
77.5%
80.5%
74.9%
(American Bar Association, 2011)

Explanations

Human Capitalist Theory

This theory attributes salary differences to how much one invests into the career, how much education one has, and how much experience one has. Also, this theory mentions psychological differences in control, commitment, and motivation. This theory would say that women tend to choose jobs that allow more flexible hours for family responsibilities instead of the elite high paying jobs in the field. If more of these women would choose the elite jobs and work more hours, then the salaries would be more equal. Basically, the factors that influence salary differences are due to the individual’s choices (Robson & Wallace, 2001).

Occupational Segmentation Theory

This theory suggests that salary differences between the sexes are due to structural reasons. Specifically, there are more constraints and unequal opportunities for women. Women are not rewarded for the same commitment and work as adequately as men. They often do not work at prestigious law firms as often as men. More often this theory has proven accurate when research studies on done on people in the field of law (Robson & Wallace, 2001).

Women Juries
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History:

Why can't women be jurors?

    • After the passing of the 19th amendment in 1919, women were allowed to serve on juries, but a woman's right to serve on a jury was determined by each state. One case in particular is that of Hoyt vs.Florida. In this Supreme Court trial, the court stated that serving on jury duty could be harmful to women because the woman is viewed "as the center of home and family life" (Women on juries: Hoyt v flordia,n.d.). Those opposed to women serving jury duty used reasoning based on traditional gender roles for woman, and believed that those women that served would be corrupted. Some based their opposition on the fact that women would be serving on juries with men; therefore, making them “men’s peers” and risking “a change in their ‘feminine nature’” (Ritter, 2002).

When were women allowed to be jurors?

    • In earlier cases, women were only allowed to be jurors when the case involved a) a pregnant woman was sentenced to the death penalty; b) the manslaughter of a baby; or c) when it questioned the morals of a young woman. The reasoning behind only letting women serve in these cases such as these was that “women know other women” (Ritter, 2002). All of these cases reflect stereotypical gender roles for women, meaning that women have to be 'moral' and they have to take care of the children.

    • In 1975, the United States Supreme Court ruled that it was unconstitutional to not allow women to serve as jurors (Women on juries: Hoyt v flordia, n.d.).


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Studies:


Gender Differences in Juror Attitudes and Convictions

    • In a study on how attractiveness affects convictions for sexual harassment, they found that female jurors, by a slightly higher percentage, were more likely than males to be affected by the plaintiffs' and the defendants' attractiveness. Researchers found this to be especially true in situations where the female defendant was considered unattractive and the male plaintiff was attractive. On the other hand, the researchers concluded that female jurors view male defendants as being “sexually motivated” (Wuensch & Moore, 2004).

    • There have been a few studies done on the effects of gender and the capital punishment. One study concluded that “men, with the exception of the youngest men, were more likely than women to select the death penalty, and young women were more likely than older women” (Beckham, Spray, & Pietz, 2007). Another study stated that men typically pushed for the death penalty more than women, whereas women wanted longer prison sentences, because women had a more "negative attitude" toward capital punishment (McKelvie, 2006).

Does Jury Duty Affect Women Differently?

    • In one study, researchers stated that women’s stress levels were more affected by jury duty than a man’s. Results of this study concluded that women were reported to have experienced significantly more stress due to the jury process itself, the interactions, and “external sources” (Bornstein et al, 2005, p. 332). There was also a slight difference in stress due to “evidence reactions”. In criminal trials, women also appeared to have more “upsetting thoughts, felt more distant and emotionally numb” (Bornstein et al, 2005, p. 333). The reasoning behind the reserchers' results was that women are more likely than men to be honest about their stressful experiences, therefore they would report higher levels of stress during jury duty. (Bornstein et al, 2005, p. 333)


How Jurors View Other Women in the Courtroom

    • Female lawyers of the early ‘80s were more likely to be thought of as credible and reliable by a jury according to the way that they were dressed. Some research suggests that a female lawyer should appear almost gender neutral to a jury, by not wearing clothes that are too masculine or too feminine. This research also stated that details to fashions choice in the courtroom make a difference when the jury consists of more females (Lind et al, 1984). Even though this particular study was specific to women’s styles in the ‘80s, the presentation of females in the courtroom could still have an affect today.

References
  • Beckham, C. M., Spray, B. J., & Pietz, C. A. (2007). Jurors' locus of control and defendants' attractiveness in death penalty sentencing. Journal of Social Psychology, 147, 285-298. Retrieved from EBSCOhost.
  • Belleau, M.-C., & Johnson, R. (2008). Judging gender: Difference and dissent at the Supreme Court of Canada. International Journal of the Legal Profession, 15, 57-71.
  • Berger, R. (1989). Female delinquency in the emancipation era: a review of the literature. Sex Roles, 21(5-6), 375-399.
  • Bornstein, B. H., Miller, M. K., Nemeth, R. J., Page, G. L., & Musil, S. (2005). Juror reactions to jury duty: Perceptions of the system and potential stressors. Behavioral Sciences & the Law, 23, 321-346. doi:10.1002/bsl.635
  • Criminal Justice Service Divison. U.S. Department of Justice, Federal Bureau of Investigation. (2009). Arrests by sex. Retrieved from http://www2.fbi.gov/ucr/cius2009/arrests/table_guide.html
  • Farhang, S., & Wawro, G. (2004). Institutional dynamics on the U.S. Court of Appeals: Minority representation under paneldecision-making. Journal of Law, Economics and Organization, 20(2), 299-330.
  • Feenan, D. (2009). Editorial introduction: women and judging. Feminist Legal Studies, 17, 1-9.
  • Gottschall, J. (1983). Carter's judicial appointments: The influence of affirmative action and merti selection on voting on theU.S. Courts of Appeals. Judicature, 67, 165-173.
  • Gryski, G. S., Main, E. C., & Dixon, W. C. (1985). Models of state high court decision-making in sex discrimination cases.Journal of Politics, 48(1), 143-155.
  • Lawyers (n.d.). U.S. Bureau of Labor Statistics. Retrieved October 25, 2011, from http://www.bls.gov/oco/ocos053.htm#earnings
  • L'Heurex-Dube, C. (1997a). Making a difference: the pursuit of compassionate justice. Canadian Journal of Family Law, 14,103-27.
  • Lind, C., Boles, J., Hinkle, D., & Gizzi, S. (1984). A woman can dress to win in court. ABA Journal, 70, 92. Retrieved from EBSCOhost.
  • Martin, E. (1990). Men and women on the bench: Vive la difference? Judicature, 73, 204-208.
  • Martin, E. (2001). Feminist judges: Challenging the status quo. In S. Carroll, The impact of women in public office (pp. 205-224). Bloomington: Indiana University Press.
  • Martin, E. (2009). US women federal court judges appointed by President Carter. Feminist Legal Studies, 17, 43-59.
  • Martin, P. Y., Reynolds, J. T., & Keith, S. (2002). Gender bias and feminist consciousness among judges and attorneys: Astandpoint theory. signs, 27, 665-701.
  • McCormick, P., & Job, T. (1993). Do women judges make a difference? An analysis of appeal court data. Canadian Journal ofLaw and Society, 8(1), 135-148.
  • McKelvie, S. J. (2006). Attitude toward capital punishment is related to capital and non-capital Sentencing. North American Journal of Psychology, 8, 567-590. Retrieved from EBSCOhost.Ritter, G. (2002). Jury service and women. Retrieved from http://www.historycooperative.org/journals/lhr/20.3/ritter.html
  • Motz, A. (2001). The psychology of female violence. Philadelphia, PA: Taylor and Francis Group.
  • Norgren, J. (2010). Ladies of Legend: The First Generation of American Women Attorneys.. Journal of Supreme Court History, 35, 71-90.
  • Peresie, J. L. (2004-2005). Female judges matter: Gender and collegial decisionmaking in the federal appellate courts. Yale Law Journal, 114, 1759-1790.
  • Pollock, J. (2001). Female criminals. Cincinatti, OH: Anderson Publishing Company.
  • Professional Women:Vital Statistics. (n.d.). Department for Professional Employees. Retrieved October 25, 2011, from www.pay-equity.org/PDFs/ProfWomen.pdf
  • Robson, K., & Wallace, J. (2001). Gendered inequalities in earnings: A study of Canadian lawyers. Canadian Review of Sociology and Anthropology, 38, 75-95.
  • Simon, R., & Ahn-Redding, H. (2005). The crimes women commit and the punishment they recieve. (3 ed.). New York: Lexington Books.
  • Smith, F. O. (2005). Gendered justice: Do male and female judges rule differently on questions of gay rights? Stanfrod LawReview, 57, 2087-2134.
  • Songer, D. R., Davis, S., & Haire, S. (1994). A reappraisal of diversification in the federal courts: Gender effects in the Courts ofAppeals. Journal of Politics, 56, 425-439.
  • Statistics: Comission on Women in the Profession. (n.d.). American Bar Association. Retrieved November 30, 2011, from http://www.americanbar.org/groups/women/resources/statistics.html.
  • Steffensmeir, D., & Hebert, C. (Social Forces). 1999. Women and men policymakers: Does the judge's gender affectsentencing of criminal defendants?, 77, 1163-1196.
  • Walker, T. G., & Barrow, D. J. (1985). The diversification of the federal bench: Policy and process ramifications. Journal ofPolitics, 47, 596-617.
  • Westergren, S. (2004). Gender effects in the Court of Appeals revisited: The data since 1994. Georgetown Law Journal, 92,689-708.
  • Women on juries: Hoyt v flordia. (n.d.). Retrieved from http://www.flcourts.org/gen_public/jury/bin/WomenOnJuries.pdf
  • Wuensch, K. L., & Moore, C. H. (2004). Effects of physical attractiveness on evaluations of a male employee's allegation of sexual harassment by his female employer. Journal of Social Psychology, 144, 207-217. Retrieved from EBSCOhost.