Very often I hear the argument that men are so much worse than women, and I hear presented as evidence the relative numbers of men versus women who are arrested, tried, convicted, and jailed. The assumption behind this argument is that the justice system is gender-blind, so a bad woman has an equal chance of being arrested as a bad man, then being arrested, has an equal chance of being convicted, and finally will receive an equally harsh sentence. I maintain that not only is the justice system not gender-blind when the two sexes commit the same crime, its very definition of what is a 'crime' is not gender-blind.
A woman in Calgary takes five shots at her millionaire ex-husband and is (effectively) let off because she was in a 'trance-like state' when she attacked him. Her 'trance-like state' was apparently brought on by his abuse of her five years earlier. Near the end of 1999 a woman got herself stinking drunk, drove on an off-ramp in Vancouver, and killed another woman in a head-on collision on a freeway hill. The court ordered her to take treatment for her alcoholism—treatment that had failed before. She was not thrown in jail, due to 'mitigating circumstances': she was suffering from PMS. In Vancouver, a Vietnamese woman attacked her husband while he slept, cutting off his penis then flushing it down the toilet. His crime? He was cheating on her. She was spared jail time because according to the judge, 'She had five children to care for.' In the most famous case, Karla Homolka was charged along with her husband Paul Teale (a.k.a. Bernardo) in the rape, torture, and murder of two girls. The prosecutors plea-bargained with Karla to have her testify against Paul, only later to find a videotape proving that she was as thoroughly involved as he was.
If the justice system sometimes makes odd judgements, then the media and public are even more prone to it. In April of 2000, 'The Fifth Estate,' a Canadian version of '60 Minutes,' aired a piece on a mother whose daughter was seized on the mere suspicion that the mother had a disorder called 'Munchausen Syndrome by Proxy,' in which sufferers harm their children in order to get attention. The woman got a half hour of prime-time television during which to state her case to the world. This sort of thing happens to divorcing fathers every week, if not every day: their children are taken from them by their ex-wives and the court system in something called 'sole custody,' and the media rarely pays any attention. In the United States, a woman pushes her car underwater with her two boys in the back seat, then claims that 'a black man' stole her car with her children in it. The nation believes her... until it is proved that she did it. Everyone cried 'racism,' sensitive to the fact that she claimed he was 'a black man.' Nobody saw the sexism in the claim that he was 'a black man.'¹
Every time a woman is charged with doing something evil, we as a society—judges, prosecutors, journalists, and Joe Public—bend over backward trying to find some reason why she wasn't responsible for what happened. If she helps out by offering us reasons why she wasn't responsible, then so much the better. We make no such efforts on the behalf of men. This does not mean that female criminals are never jailed. There are plenty of women in prisons. We just put Kelly Ellard there for murdering Rina Virk. We put Karla Homolka inside, and I hope that we keep her there. Neither does this mean that all of the men in jail don't deserve to be there. My point is that perhaps there should be more women in prison than there already are, or fewer men, depending upon your ideas on justice and punishment.
This is the surface of the issue. This is the obvious part. When men and women commit the same crime, we do our best to explain away women's behaviour whereas we rarely bother looking for explanations in the case of men. However, one can take the thing deeper.
If we as a society are prone to excusing women when they commit what the law considers to be 'crimes,' could it be that our very definition of what is 'criminal' is designed to punish typically male behaviour and turn a blind eye to female behaviour, thus making the bias even worse?
Traditional male behaviour is direct. Men take clear action to solve problems. Traditional female behaviour is indirect. Women coax others into action to solve problems. If one accepts this, then it is not hard to see that as a society we punish the former much more harshly than the latter. As an example, we clearly consider murder to be a crime. The act of twisting a rope around someone's neck and throttling the life out of them is severely punished in our society. Why, then, is it not a crime to nag and badger someone until they hang themselves in despair? There is an obvious reason: it is much simpler to demonstrate the cause-and-effect relationship between a direct action (garroting someone with a rope) and a consequence (death) than it is to demonstrate such a relationship when the action is indirect (hounding someone into a state of abject despair). Nonetheless, the result in both cases is the same, and the result of making one behaviour criminal but not the other is that more males will be punished than females for actions that have the same consequences.
Perhaps a more common example is the contrast between the crime of domestic abuse and the crime of perjury. On the one hand a man physically abuses a woman. Women tell us that this can result in emotional devastation, make functioning in daily life difficult or even impossible for years, and requires a long recovery time. On the other hand, a woman lies about being abused and thus robs a man of his social status, perhaps his job, and quite possibly lands him in prison. This can result in emotional devastation, make functioning in daily life difficult or even impossible for years, and requires a long recovery time. Now, even if you believe that the latter is very rare and the former is very common, and even if you believe that the courts treat abusers to leniently, you must admit that domestic abuse is a crime and is, in general, punished, whereas even in cases in which the courts have clear evidence of malicious perjury, they clear the wrongly accused man, but only rarely go so far as to prosecute the lying woman. Even when there is clear evidence that someone is lying in an attempt to ruin another's life, the courts rarely punish the guilty.
In effect, law exists principally to control male behaviour, not female behaviour, even when the consequences of the two behaviours are the same.
In fact it may be that the 'obvious truth' is indeed true: that men are 'more bad' than women and so are more deserving of punishment. However, crime statistics can neither tell us this nor tell us 'how much worse' men are than women, if at all. Whether a man ends up in jail depends upon five things: the personality of that man, sexism in the police force, sexism in the judiciary, sexism in the law, and sexism in society and thus in juries. To claim that statistics about convictions and jail time tell us about only one thing—the personalities of men—ignores the other four forces at play.
