Justice System Discrimination and the Myth That Sexism Against Men Isn’t “Institutional”

The typical method of dismissing sexism against men is to say it isn’t “institutional”. This usually means claiming that prejudice and discrimination against men occur as isolated events by individuals, without backing of institutional power, and with limited ability to do harm. A clear counterexample is that the criminal justice system is more severe on men than on women in numerous ways, including likelihood of arrest, chance of pretrial detention, bail amount, and chance and length of jail-time. And many are calling for even more special concern and treatment for women in the justice system.

The justice system is backed by the power of the government. It is the definition of “institutional”. And with the uniquely life-upsetting ability to lock someone up and take away their freedom, its capacity to do harm easily rivals that of any other institution.

Sections:

  1. Sexism against men is not “institutional”?
  2. Eight studies showing justice system discrimination against men
  3. Interviews with judges
  4. Calls to increase the disparity?
  5. Other differential treatment: privacy, perks, etc.

(Length: 2,300 words)

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1. Sexism against men is not “institutional”?

The article “6 Reasons Men Can Literally Never Be Victims Of Sexism” by Kat George on the online women’s magazine Bustle (a site with more than 15 million unique monthly viewers) says that “men might experience discrimination, bullying or even disparagement of their gender, but this doesn’t equate to sexism” because “[s]exism is institutionalized”. She says emphatically: “THERE IS NO HISTORY OR INSTITUTIONAL BIAS AGAINST MEN ON THE BASIS OF GENDER. It does not exist.” She accepts that men face challenges, difficulties, hardship, and unjust treatment in life, but “they do not happen on the basis of gender” (men suffer from their race, class, etc., not their gender).

Research on justice system discrimination has indeed found discrimination based on race, level of education, etc. But it has also found gender discrimination. In fact, men’s harsher sentencing “may be one of the best established facts regarding criminal justice outcomes” (from Rodriguez et al. 2006, cited below). Sonja B. Starr controlled for legally relevant factors and found a gender disparity six times larger than the racial disparity. A 2004 report from the United States Sentencing Commission says that the evidence for discrimination based on gender is more consistent than for race (page 127).

Commonly the idea of institutional sexism against men is dismissed by referencing feminist theories of power. The Feminism101 FAQ refers to the “imbalance of power” and says that there is “a difference in the impact of a man being prejudiced towards a woman and a woman being prejudiced towards a man”. First, why limit ourselves to only women engaging in sexism against men? Other men can do it too. Second, judges (both male and female) have an enormous amount of power over a male suspect in their court. Any power that your theory posits for the male suspect on account of his gender is obviously not enough to protect him from gender-based justice system discrimination.

In his 2010 book Microaggressions in Everyday Life: Race, Gender, and Sexual Orientation, Derald Wing Sue (Professor of Psychology and Education at Columbia University) defines institutional racism in the following way. If we apply this definition to gender, justice system discrimination against men clearly counts as institutional sexism. (The Social Justice Wiki’s definition of “institutional oppression” also applies.)

Institutional racism is any policy, practice, procedure, or structure in business, industry, government, courts, churches, municipalities, schools, and so forth, by which decisions and actions are made that unfairly subordinate persons of color while allowing other groups to profit from the outcomes.

One rebuttal might acknowledge that some institutions discriminate against men but say that even more institutions discriminate against women. Even if true (and I’m not sure it is), less institutional is different from not institutional.

Another rebuttal might say that the harsher treatment for men implies that women are weak or less capable, making it “benevolent sexism against women”. But we could also understand it as an implication that women are more moral, or more deserving of compassion. More importantly, it’s obvious that harsher sentencing for men primarily hurts men. Talking about unflattering implications for women is fine, but to make women the “real victims” of justice system discrimination against men is unreasonable.

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2. Eight studies showing justice system discrimination against men

The offender’s gender is a “legally forbidden basis for judicial and prosecutorial decisions” (from Stacey & Spohn 2006). But, according to the following studies, this principle is systematically violated (at least in the United States). All findings are after controlling for the factors (e.g. crime, criminal history) mentioned under “data”.

  1. Finding: Women are 39% less likely to be incarcerated, and when incarcerated their sentences are 23% shorter.
    • Data: All 109,181 defendants (who meet the criteria) sentenced in the U.S. federal courts between Oct. 2001 and Sept. 2003. Controlled for factors including criminal history, offense type, offense severity, and dependents.
    • Study:Gender and Sentencing in the Federal Courts: Are Women Treated More Leniently?” by Jill K. Doerner and Stephen Demuth (2015, Criminal Justice Policy Review)
  2. Finding: Women receive lower bond amounts, are less likely to be held before trial, and (if convicted) are less likely to be sentenced to prison. However, their sentence lengths are not shorter.
  3. Finding: Men receive 63% longer sentences than women. Women are more likely to avoid charges and convictions, and twice as likely to avoid incarceration if convicted. Previous studies “probably substantially understated the sentence gap by filtering out the contribution of pre-sentencing discretionary decisions”.
    • Data: A set of federal crimes from 2001-2009. Factors controlled for include arrest offense, criminal history, etc.
    • Study:Estimating Gender Disparities in Federal Criminal Cases” by Sonja B. Starr (2012, University of Michigan Law and Economics Research Paper Series)
  4. Finding: For property/drug offenses, women receive shorter sentences and are less likely to be sentenced to incarceration in the first place. For violent offenses, they are no less likely to be incarcerated but received shorter sentences.
  5. Finding: Men receive longer sentences by about 10 months.
  6. Finding: “[W]e find that female defendants are more advantaged at every decision point [of the pretrial period].”: They are 30% less likely to receive preventative detention, and 35% less likely to be released on financial terms. Their bail amounts are 17% lower, and they’re 22% less likely to be held on bail.
  7. Finding: Women’s chances of being arrested are 28% lower for kidnapping, 48% lower for forcible fondling, 9% lower for simple assault, and 27% lower for intimidation. No difference was found for forcible rape or robbery.
    1. Data: 555,752 incidents of various crimes in 19 states (and D.C.) in 2000. Factors controlled for include offense seriousness, weapon, injury, etc.
    2. Study:Sex differences in the likelihood of arrest” (PDF) by Lisa Stolzenberg and Stewart J. D’Alessio (2004, Journal of Criminal Justice)
  8. Finding: Men receive 12% longer sentences than women, and are less likely to avoid prison when the option is available. When departures from sentencing guidelines happen, men are more likely to receive upward departures and less likely to receive downward departures (and their downward departures are smaller).

Did these studies fail to control for any relevant factors? Section 3 of Sonja B. Starr’s paper has a good discussion of this for her study. She concludes that some other factors (particularly childcare responsibilities and perceived role differences in group crimes) probably play a role but can only explain part of her 63% disparity.

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3. Interviews with judges

A 1997 study in the UK interviewed 200 magistrates (judges), finding that they tended to see offenders either as troubled (needing help) or troublesome (needing punishment). It was exceptional for women to be seen as the latter. Some of their explanations might be justified by the individual cases (e.g. they reported that women more often shoplift to feed their children), but much of the categorization was clearly based on assumptions, stereotypes, or emotional responses rather than the facts of the case.

For example, multiple magistrates reported assuming that, with multiple offenders, the man was the leader and the woman was vulnerable and more like a victim herself. And some of the female magistrates accused their male colleagues of too quickly believing female defendants, with the implication that it was because of attractiveness. Many magistrates also brought up that solicitors (lawyers) often emphasized old-fashioned cultural stereotypes of women to gain sympathy. One magistrate commented “you really wonder how the innocent-looking young lady in front of you, who’s obviously been told by her solicitor to look as helpless as possible, could possibly have undertaken the violent elements that are there”. In addition, female defendants more often appeared in court as nervous or tearful, which often elicited sympathy.

Differences in perceived agency between men and women are evident here. Although they harm women in some ways, clearly in this context men are the primary victims.

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4. Calls to increase the disparity?

Mirko Bagaric (Director of the Centre for Evidence-Based Sentencing at Deakin University, Melbourne) writes in The Guardian that we should treat women’s crimes more “fairly”—by exempting them from prison and closing women’s prisons altogether (also advocated by the Women’s Justice Taskforce). He explicitly says “[women] should also be treated more leniently when they commit the same crime as a man”. (Perplexingly, he’s also argued for racial minorities to get a sentencing discount with arguments—like over-representation in jails, and lower life expectancy—that would also apply to men.)

Jenny Earle (of Prison Reform Trust UKwrites that “incarceration is emblematic of women’s confined and marginalised position in society” and that “reducing women’s imprisonment in the UK is a social justice imperative”. She explains that “[e]quality does not mean treating women and men the same”. And the Canadian Association of Elizabeth Fry Societies is calling for the Canadian government to “reduce the number of women behind bars” and limit/end the use of segregation cells for women. In 2010, UK judges received guidelines to be more lenient on female criminals. See also “Hillary Clinton takes a stand for women in prison” from 2016 and this British MP’s plea “to keep women out of prison amid fears they are being jailed unnecessarily” from 2017. Journalist Ally Fogg gives an overview of the push to reform prison for women (in the UK in particular):

Since the Corston report of 2007, there has been a persistent focus on reform of women’s sentencing from charities, campaigners and politicians of all parties. This gives a strong message that female offenders are special, to be pitied and understood. Male prisoners, by implication, are creators of their own ill-fortune.

Some justify lenient sentencing because women’s rates of recidivism (re-offending) are lower. This is true, but older people, white people, and more educated people also have lower recidivism rates. Should we sentence them more leniently? Perhaps not send whites or college educated people to jail at all? Also, as noted by a report from the United States Sentencing Commission (“Recidivism Among Federal Offenders: A Comprehensive Overview”—the source of the image below), these rates don’t take into account crime severity. If women or white people on average commit less serious crimes then it’s not unexpected that their recidivism rates would be lower. It doesn’t mean they should get more lenient sentences for the same crimes (and same criminal history, etc.).

rec

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5. Other differential treatment: privacy, perks, etc.

In The Second Sexism, David Benatar explains that in the United States (one of the few countries that allows opposite-gender prison guards) the privacy interests of female inmates are generally prioritized over the employment interests of male guards, while the privacy interests of male inmates are generally ruled less important than the employment interests of female guards (e.g. when determining who can do pat-downs or work in sensitive positions that might involve a lack of prisoner privacy).

In 2013, the United Kingdom announced reforms to “toughen up prisoner privileges” that would “apply to adult male prisoners in both public and private prisons”. The changes resulted in a longer work day, a banning of Certificate 18 DVDs, and more limits on gym access and television. The Independent reports that in the UK, women by default do not have to wear prison uniforms while men must unless they earn the privilege to wear their own clothes. Keep in mind that uniforms are not just about aesthetics; they’re “designed to depersonalise individuals”.

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