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Gender and Law (From Women, Crime, and Criminal Justice: Original Feminist Readings, P 212-221, 2001, Claire Renzetti and Lynne Goodstein, eds. -- See NCJ-197570)

NCJ Number
Frances Bernat
Date Published
10 pages
This chapter analyzes how women's biological nature is used by the legal system as a justification for disparate treatment and the perpetuation of gender stereotypes to produce disadvantages for women compared with men.
Although the equal protection clause of the Fourteenth Amendment, coupled with equal rights amendments in many State constitutions, have succeeded in eliminating virtually all formalized sex-based legal discrimination in the criminal laws, gender stereotypes continue to influence criminal law practices. Judges with broad discretion in sentencing continue to mete out different sentences to male and female defendants convicted of the same type of crime. This chapter focuses on understanding the manner in which courts determine the constitutionality of sex-based statutes and the level of gender bias in the disposition of criminal cases. Various studies have found that although women who committed serious offenses were not sentenced as harshly as men, the reverse was true for less serious offenses. It has also been determined that women who are incarcerated have less access than men to work release and rehabilitation programs. In addition, because of overcrowded conditions in male facilities, men are likely to be released early; whereas, women often serving their time in less crowded prisons must serve their full terms. In some States, female inmates are confined in facilities far from their homes and children and have much less access to services and programs than male inmates. Among serious female offenders, lenient sentences (compared to male offenders) are reserved for those women who conform to conventional feminine stereotypes. States have recently begun to confine or punish women for certain behaviors during pregnancy. In some States, a woman can be confined (hospitalized) under court order if the court determines that she is not taking care of herself during her pregnancy, such that the fetus may be harmed. Women may also be criminally prosecuted as child abusers for taking drugs in their third trimester of pregnancy. The invidiousness of gender bias in the legal system is in the perpetuation of traditional female gender roles that fail to take into account the realities of women's lives in patriarchal social and legal systems. Consequently, it is important for feminist scholars to engage in both macro and micro analyses of women's experiences in the legal system. 9 notes, 46 references, and 3 discussion questions


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