Tema 2 (2016)Apunte Inglés
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Gender and Criminal Justice System
SESSION 2. Feminist analysis of the CJS
Importance of gender-based analysis in criminology
o Discrimination and gender-based discrimination
Feminist criticisms to law and CJS
o Sameness approach
o Domination approach
o Intersectional approach
Sex & Gender Different realities
Work (productive/reproductive work, domestic work, etc.)
Family life (women’s responsibilities, double burden)
Poverty (increasing feminization of poverty)
Education (illiteracy rate, access to higher levels of instruction)
Health and nutrition (sexual and reproductive health, disparities
in child nutrition)
Violence (men and women exposed differently, LGBT people)
The public and policy making (under-representation of women)
Consequences in the CJS
Why are feminist perspectives are important when analyzing the CJS?
Increase knowledge of CJS
o Enhance knowledge of reality
o Make visible hidden realities
o How the CJS deals with women, LGBT people
o More effective / adequate interventions
Legitimacy of CJS:
o A just system treats people equally
o Rule of Law human rights no discrimination
Gender and Criminal Justice System
Legitimacy of CJS
Discrimination against women
Convention on the Elimination of All Forms of Discrimination against Women, CEDAW, New York, 18
Article I. For the purposes of the present Convention, the term "discrimination against women" shall mean
any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field.
2 Gender and Criminal Justice System Precedent: International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965 Article 1.1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
Yogyakarta Principles Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, 2006 Principle 2. The Rights to Equality and Non-discrimination Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms. Discrimination based on sexual orientation or gender identity may be, and commonly is, compounded by discrimination on other grounds including gender, race, age, religion, disability, health and economic status.
Criminal Justice System Must guarantee equal treatment and no discrimination: o A CJS without discrimination in the definitions of crime crime prevention / police arrests / crime prosecution in representation in court during criminal trial in sentences / probation, etc.
Feminist criticisms to law and CJS Second wave feminists (1960’s –1970’s) feminist criticisms to law & feminist criminology Feminist legal theories the law has been fundamental in women's historical subordination Feminist criminologists o objected the exclusion of gender from criminological analyses o even critical criminology tended to exclude gender 3 Gender and Criminal Justice System Phases: Feminist criticisms to law (including criminal law) phases: 1. Law is sexist (liberal feminists) 2. Law is male(radical feminists) 3. Law is gendered (postmodern feminists) (a) Law is sexist (sameness approach) Law disadvantaged women by o fewer material recourses (traditional norms on marriage and divorce) o different standards in crime (ex. adultery) o failing to recognise harm to women (sexual crimes laws, domestic violence) Solution: equal treatment under the law (from gender neutral language to change women position in societies) Problem: o Confuses differentiation with discrimination: women are in a position of disadvantage because they are ‘different’ from men o Equal-treatment model hides discrimination under the guise of gender neutrality. Ex: negative effects of liberal reforms in divorce 4 Gender and Criminal Justice System Negative effects of liberal reforms in divorce and child custody exemplify the weakness of “the sameness approach”: o relative impoverishment of women and children o gender-neutral rules are administered in biased ways Sameness/difference approaches fail to acknowledge disparities in power between the sexes 5 Gender and Criminal Justice System (b) Law is male (domination approach) Most lawmakers are indeed male o neutrality and objectivity are actually masculine values universal o objective criteria are masculine Domination approach has led to recognize: o Domestic violence as a crime o Marital rape as a crime o Sexual harassment as a crime (Catherine MacKinnon) Problem: o This approach was criticized for essentializing women(as sameness/difference approaches) It is reductionist because it assumes that all women are oppressed by all men in exactly the same way, or that there is one experience of dominance experienced by women o Perpetuates the idea of law as a unity “Gender refers to the socio-cultural construction of the sexual difference between men and women and the subordination of the latter. Gender roles, like attributes and beliefs about what is “appropriate” for each gender, vary historically and geographically; they are not homogeneous within the same society, and they intertwine with other aspects of identity, such as class, ethnic origin, sexual preferences, legal status, etc.” (World Health Organization, WHO).
(c) Law is gendered (intersectional approach) This view does not entail a total rejection of all the insights of the former (law is male) Gender relations do not occur in a vacuum but, instead, that men and women also are characterized by their race, class, sexuality, age, physical ability, and other locations of inequality.
o All of them are overlapping and cumulative in their effect on people’s experience.
6 Gender and Criminal Justice System Those power relations (based on race, gender, class, etc.) cause some characteristics to be seen as “normal” while others are seen as “different” and thus, deviant.
But, systems of power act on all social-structural levels: people simultaneously experience both oppression and privilege Law and CJS processes which will work in a variety of ways o There’s no presumption that whatever it does exploits women and serves men.
o Law as a technology of gender (T. de Lauretis): Law produces fixed gender identities rather than the mere application of law to previously Race/gender perspective assumes that race and gender relations structure criminal law and justice system in important ways.
Criminological studies: o Race, gender and class have been “autonomously” applied to the study of crime o In the last decade feminist criminologist have begun to focus on the interaction between 2 or more of these variables as they relate to crime.