LENIENCY TOWARDS FEMALE CRIMINALITY IN CRIMINAL JUSTICE ADMINISTRATION – IS IT JUSTIFIABLE?
Author: Prof. Dr. Mithilesh Vishwakarma, SSLG, Jaipur National University
Co-Author: Shreya Sharma, Jaipur National University
In the Present research Article, the Author deals with the topic “Leniency towards Female Criminality in Criminal Justice Administration – Is It Justifiable?” The Article deals with the fact that female offenders are hardly convicted and the punishment awarded to the female offenders are way too lenient to that granted to any male offender. Generally, a woman is seen as the victims to any crime and hence it can be said that an opinion has gradually developed with respect to women that either they are innocent for in case of any crime it must have been done under certain circumstances. As we slowly approach the time when men and women strive to be at par the adverse reaction to it will also be observed and hence has to be accepted. In a given situation where both man and woman is facing punishment, the treatment given to both is absolutely different and hence can be said to be gender-sensitive. The author states that there has been an increase in the number of female offenders and so the time has arrived to address his issue seriously in order to take proper measures to curb the crime rate. The author had referred to case laws in order to establish the difference in the treatment of men and women offenders. In the case of Rajiv Gandhi Assassination, the female offender was awarded life imprisonment whereas the other conspirators were sentenced for the death penalty. The author further explains the Battered women syndrome recognized by the criminal justice system where the court in a few cases have reversed the judgment of the lower court and declared woman guilt-free of a crime as it was a reaction to the extreme pressure and stress she was subjected to in her real life. The Author has also thrown light on the aspect of diminishing responsibility and further concludes that in cases when a judiciary decides a matter where the women is the offender, the situation which leads her to commit the crime is considered. This examination is totally done at the discretion of the court and hence it needs to be curbed down and should be guided by proper and definite principles.
Certain masculinity has always been associated with crime and women criminals are always fewer, for total cognizable crimes in 2016, 3.54 million men were arrested while the number of men was far lower around 193, 241. However, there has been a recent trend of an increasing number of women coming in conflict with the law and in India, with respect to the number of women arrested under IPC, Maharashtra stood first with 28, 029 females arrested in the year 2016. Though economic insecurity, migration act as a reason for increasing the crime rate in India for both men and women, the social location has a prominent role to play in whether or not women venture into crime.
Minakshni Sinha, associate professor at Lok Nayak Jayaprakash Narayan National Institute of Criminology and Forensic Science says that “When you are empowered, you are empowered in both good and bad ways. In places like Maharashtra, women are more empowered than in the North and have access to more opportunities with less social control and more knowledge of technology. Because of these reasons, women have also started to enter the world of crime as well.”
In another survey that compared the date from 2001 and 2011, it is found that the percentage of female criminals among the total criminals increased from 5.4% to 6.2%. One may say that it is hardly a 0.8% increase in a decade. However, going into the details proves that the nature and severity of crimes in which women are involved have undergone a drastic change. Hence there is a need to identify the pattern of female criminality in order to take countermeasures for the control of the increasing numbers. This paper purports to analyze the view of different criminological thinkers, sort out the same so as to get a clear picture of the going female criminality in India and how it influenced the legal system to have a different approach towards female criminals.
2.0 GENDER AND CRIME
For a long time, Gender has been used as a predictor of crime, especially violent ones. For instance, Men and boys commit significantly more crime than women & girls. Because males are generally seen to be more aggressive than females. With this superficial view, most other theories studying criminal behavior seem to be gender blind.
2.1 TRADITIONAL APPROACH
One of the popular Criminologists, Cesare Lombroso stated that criminals possess an innate & atavistic predisposition towards crime. The reason for women’s lower crime rate can be attributable to the piety, maternity, want of passion, etc. Those women who lack the above-mentioned characteristics venture into the world of crime. Another reason why women have lower criminality is that they lacked the combination of intellectual function required for more demanding crimes like robbery etc.
Following the opinion of Lombroso, Bonger stated that women have fewer crime rates because of a lack of strength and courage. And the reason for such deficiency may be biology, social conditions, position in a capitalistic society, etc.
In the post-war period, much emphasis is given to the sociological factors, that is to say, the propensity for society to more strongly persuade girls than boys to avoid delinquent behavior. Also, society expects girls to follow biological and culture-based gender norms. This further developed and gave rise to the socio-biological factors viz. Parental deprivation, inability to adjust to feminine roles, impaired physical health, etc. This view of socio-biological factors illustrated two main reasons why this factor controlled the female crime rate. They are :
- Factors which influence male to commit crime also influence a female.
- But, stricter cultural norms on behavior, deprivation from the standard norms relating to biological, psychological, sociological behavior than their male counterparts prevented or restricted the female into the world of crime.
Hence, “the females who decide to engage in a crime must transverse a greater moral & psychological distance than males”
The above-mentioned views seem to propose that the suppression of females is the main reason that female crime rates are very low. From this inference, it could be easily inferred that the reason for the increasing female crime rates is the concept of gender equality and formalized social control where the law enforcement & reporting practices are consistent with the standards for the decision-making process when an arrest is made. These two factors also reduce the effect of gender on the probability of arrest.
2.2 GENDER EQUALITY HYPOTHESIS
The assertion in the gender equality hypothesis is that the gender gap in crime is less in social settings where female roles and statuses presumably differ less from that of men. This early explication of gender equality and crime hypothesis became the standard sociological explanations for the gender gap in crime but it never attracted widespread public attention until 1970 when several feminist criminologists suggested that an increase in the female share of arrest could be attributable to gain in gender equality.
The gender equality hypothesis continues to influence theories of gender and crime as exemplified in the power control approach developed by Hagan in 1993. According to the power control theory, the gender gap in delinquency is minimized for girls in an egalitarian family where the families were headed by women. As with the earlier statements of gender equality hypothesis, greater gender equality is assumed to lead to higher rates of female crime. Hence, it is plausible to argue that greater freedom, which increased female participation in the public sphere accounts for the increase in female crime rates.
This line of theories, while assuming that improving women’s economic condition led to female crime, it failed to explain the increasing female crime rate among economically marginalized women.
2.3 GENDER INEQUALITY
Patriarchal power relations shape gender differences in crime, pushing women into crime through victimization, economic marginality, and survival needs. The logic of the gender inequality approach will suggest that greater gender equality, lesser will be the female share of crime. Some instances which illustrate the role of inequality include the career path of female teens who drift into criminality as a consequence of running away from sexual and physical abuse at home. Even many female criminologists have studied how female vulnerability to male violence drives women into illegal activities. In support of this argument, Steffensmeier points out that the increase in petty property offences is less likely to result from workforce gain other than economic pressure on women.
In order to give an exhaustive analysis to the research paper, the scope of the paper will be confined to the above mentioned four approaches reasoning the rise in female criminality viz. Biological, sociological, gender equality and gender inequality.
3.0 WOMEN OFFENDERS AND CRIMINAL JUSTICE SYSTEM
Out of the four approaches mentioned above, the gender inequality approach and social control approach paint a sympathetic view on the female criminals. That is to say, those approaches try to justify the crime committed by the females by citing their social conditions as the reason. Yet, justice should be blind and while adjudging the guilt of the female criminal, the court must not favor the women’s side showing empathy. Though the two approaches portray female criminals as victims of their circumstances, there is also an actual victim of the crime committed who needs justice.
In a study published in the Journal of Criminal Justice, it has been found that women were less likely to be detained before a trial and there are 46% less likely to be held in Jail than men. Also, women who were released on bond were given lower bond amounts. Their bond amount is 54% less than what men were required to pay. Then women were 58& less likely to be sentenced in prison.
The female offenders, if punished, are dealt with greater leniency than male offenders because they are considered more gender-sensitive. This is modern punitive philosophy based on Chivalry. Chivalry means treating others, especially women with courtesy, sympathy, and respect. According to the Chivalry theory, women are treated more leniently than men by the criminal justice system. Police are less likely to charge women and courts will tend to give women a lighter sentence even when they have committed the same offence as men. The chivalry represents the idea that the criminal justice system puts women on a pedestal and treats them like a protector.
Even in India, there are instances where the judiciary treated female criminals with much leniency. In-State of Tamilnadu through SP, CBI/SIT v. Nalini & 25 Ors., a case involving the assassination of former Prime Minister of India, Rajiv Gandhi, and Nalini along with deceased accused Sivarasan, Dhani and Shubha conspired to assassinate the Prime Minister by detonating a human bomb. The apex Court by unanimous verdict confirmed the death sentence of Santham, Murugan and Arivu. As regards the extreme penalty of death to Nalini, it was commuted to life imprisonment. In Regina v. Kiranjit Ahluwalia, the convict was released after serving three and a half years of a mandatory life sentence for murdering her husband. Her retaliation was followed 10 years of systematic abuse, but what caused her to flip on that fateful evening was that he had pressed a hot iron against her. Kiranjith was released by Appeal Court Judges on the ground of “diminished responsibility”.
3.1 BATTERED WOMEN AND DIMINISHED RESPONSIBILITY
As stated earlier, criminology theories suggest that the hardship suffered by women instigate them into the world of crime. In the American Legal System, a new defense for the victims of domestic violence who kill their abusive partner has emerged in the name of “Battered Women Syndrome” and “Diminished Responsibility”. The nature of such a defense is that it purports to protect the women who committed a crime by reason of her circumstances. Such a defense is also possible to be applied for almost all crimes committed by females is the Social Control and gender Inequality approach is taken for the rising female criminality. Hence, it becomes necessary to analyze those concepts in detail.
The concept of Battered Women Syndrome was first recognized in India by the Guwahati High Court in Manju Lakra v. State of Assam where the Court set aside the charges of murder and instead convicted the accused wife for culpable homicide not amounting to murder. This case is referred to as ‘Nallathangal Syndrome” which is the Indian equivalent to BWS. Nallathangal Syndrome is based on a Tamil literature Nallathangal Ballad. It is a story of a rich lady who succumbs to unfathomable misery due to unexpected poverty and commits suicide along with her children to escape misery.
3.1.1 BWS AND NALLATHANGAL SYNDROME
A battered woman, who has no control over their abusive relationship, gradually becomes passive and believes that there is no escape even though escape is objectively a possibility. Bound by socio-economic factors beyond their control, these women are trapped in a cycle of violence. It creates a sense of helplessness where they believe that legal recourse will fail them. Hopelessness and helplessness may lead the battered women to consider the death of abusers as a clear and final solution to their cycle of violence.
In Suyambukkani v, State of TN, unable to bear the cruelty of her husband, Suyambukani jumped into a well along with her children. The children died while she survived. She was charged to murder and the trial court confirmed her guilt. The Madras High Court reversed the judgment of the Trial Court and held that her act would be covered under sustained provocation exception. The Court took into consideration, the natural reaction of women to her social environment. The intention was not to cause the death of her children but to end the pain and cruelty that her children will be subjected to after her death. Overall, the BWS aims to protect a victim from becoming an aggressor due to the surrounding circumstances.
3.1.2 DIMINISHED RESPONSIBILITY
According to the principle of Diminished Responsibility, if a person suffering from an abnormality of mind kills another, he shall not be convicted of murder. Abnormality of mind means a state of mind different from that of ordinary human beings and a person is said to suffer abnormality of mind if he has an arrested or retarded development of mind or inherent causes caused by disease or injury which substantially impairs mental responsibility.
This has been first recognized in India in the case of R. v. Kiranjit Ahluwalia. Diminished Responsibility requires a person to prove himself to be in a state of mind that a reasonable man would consider abnormal.
The concepts of Battered Women Syndrome and Diminished Responsibility appear to be limited only to the offense by a murder committed by victims of domestic violence. But when we understand the logic behind the defenses, we find that they are granted because the women committing the crime are forced by her circumstances. This being coupled with the social control approach and the gender inequality approach may produce an inference that in crimes committed by females, there is a high possibility of acquiring them or awarding a lesser sentence as they committed the crime by force of their circumstances.
4.0 SENTENCING POLICY AND FEMALE CRIMINALS
The Chivalry thesis posits that gendered stereotypes about both men and women influence sentencing outcomes. Sometimes called paternalism, chivalry asserts that women are stereotyped as fickle and childlike and therefore, not fully responsible for their criminal behavior. The relationship between gender and sentencing is a byproduct of human error expressed in judicial outcomes. Popular theory to justify the influence of gender on the sentencing process is the focal concerns theory. According to this theory, constraints on the number of times judges can spend on their cases mean that judges receive incomplete information on defendants and their cases. Confronted with this restriction, judicial decisions on sentencing outcomes are often influenced by a generalization and personal bias (By generalization here, I mean the social control approach and gender equality approach behind female Criminality). Judges commonly make contextual attributions on the defendant’s culpability; character etc. based on three focal concerns viz. Blameworthiness, dangerousness and practical constraints. They may also attribute certain characters based on gender. Female offenders may be seen as less of a risk to the community and to re-offend while male offenders are seen as more culpable. Hence, females are less likely to receive incarceration and if they do, shorter sentences than females.
With the influence of gender on the sentencing process being proved, the next question arises as to whether gender influences the sentencing outcomes in general. Selective chivalry or evil woman thesis suggests that preferential sentencing outcomes are available to the female whose criminality does not violate gender expectations. That is to say, criminality which affects conventional norms are treated harshly whereas those crimes which are typical of female and stereotyping female gender roles (eg. property crimes) are treated leniently.
Considering the welfare of the women, the judiciary has noted that while deciding cases, it should look into the reasons and compelling factors which led the women to commit a particular crime. As observed in most of the cases, the unbiased social system is one of the main reasons why women resort to crime as retaliation to her suppression. That is why the court introduced the concepts of Battered Women and Diminishing Responsibility.
A criminal conviction requires proof beyond a reasonable doubt. That proof is with respect to the commission of a crime. That is what the law says. But, the law does not always provide justice. Law and justice are two different things. For the purpose of understanding how and when the law can be used to deliver justice, every law has got a jurisprudential aspect to it. That is the purpose of studying the philosophy behind the law. While prosecuting a female criminal, most of the time, the courts venture into the criminology behind the female Criminality. Among all the theories and explanations given by various criminologists, this research paper confined its scope to two such views, the social control approach and the gender inequality approach which states that the suppression and hardships faced by women push them into the world of crime. As seen above in the relevant chapters, the courts started considering these approaches as mitigating factors in adjudging the guilt and during the sentencing process. Though the socio-economic condition of the female criminal requires concessions in the criminal justice system, there is also a real victim who should be given proper justice. There are no direct instances where the court applied BWS and diminishing responsibility on all cases of female criminality. But there is a chance that the judge may use the defenses using his discretion in any future cases. Hence, what the research paper suggests is that such a judges’ discretion must be curtailed and should be guided by definite principles rather than just be a criminology theory with vague explanations and indefinite sources.
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