Session 2 Feminist Analysis of the CJS (2016)Apunte Inglés
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SESSION 2: FEMINIST ANALYSIS OF THE CRIMINAL JUSTICE SYSTEM
Those differences exist in reality and we need to take them into consideration.
We need to introduce these factors when analizing the CJS. We enhance knowledge and we can develop different policies (how the CJS deals with women, LGTB people). Our aim should be to have a system that respect the human rights and the rule of law and no discrimination.
Human Rights: some rights that are very basic and should be respected for everyone, everywhere at any time.
Rule of law: respecting and having laws to respect all the people.
Non discrimination principle: to find a way to provide anyone with human rights and to ensure that those human right are respected for everyone.
Discrimination is not when you have the intention of discriminate (as hate crime). But the consequences of that policy are discrimination.
Discrimination against women 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. (Convention on the Elimination of All Forms of Discrimination against Women, CEDAW, New York, 18 December 1979 Precedent 1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, 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 freedomsin the political, economic, social, cultural or any other field of public life. (International Convention on the Elimination of All Forms of Racial Discrimination, 21 December1965) Yogyakarta principles Principle 2. Discrimination on the basis of sexual orientation or gender identityincludes 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. (Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, 2006) Criminal Justice System Obligation of guarantee equal treatment and no discrimination. Example: USA treat man and women the same, pregnancy.
Shouldn’t have discrimination in the definitions of crime in the code. Shouldn’t be in crime preventions, police arrests and crime prosecution (racial profiling). Also in representation in court, during the trial and in sentences or probation.
At every stage or area, we should pay attention on how it is dealing with the issue of discrimination.
Feminist criticism to law and CJS It began at the 60’s or 70’s because it took a certain time to women to arrive at university and the moment they were academics who wrote new theories. The basic idea, the legal system was based in women’s subordination. Even critical criminology also exclude gender.
Three periods: - Law is sexist (liberal feminists). Sameness approach.
Women are essentially similar to men, so sexes should be treated equally (sameness approach). But women and men have different characteristics that require special treatment to over-come their gender-based discrimination (difference approach).
The problem with law. Law disadvantaged women by fewer material resources (traditional norms on marriage and divorces, property of the woman goes to the man), different standards of crime (adultery) and failing to recognize harm to women (sexual crime laws, domestic violence, abortion).
Solution: equal treatment under the law (from gender neutral language to change women position in societies).
Problem: The radicals criticized the liberals. Women are in a position of disadvantage because they are “different” from men. Equal treatment model hide discrimination under the guise of gender neutrality. Example: negative effects of liberal reforms in divorce and child care.
There are some negative effects of liberal reforms in divorce that lead to the poverty of women and children. Sameness/difference approaches fail to acknowledge disparities in power between the sexes.
- Law is male (radical feminists). Domination approach.
Law makers are indeed male. The consequences are that some values that are masculine, are in legislation. Those had become universal values and some of those are the values of neutrality and objectivity. They consider that what we understand as objective criteria are indeed masculine criteria.
Domination approach has lead to recognize: domestic violence as a crime, marital rape as a crime an also sexual harassment. Certain forms of crime that are committed against women.
Law is not able to see this reality. Marital rape wasn’t a crime because they were property of the man in their marriage.
Problem: this approach was criticized for essentializing women. Reductionist because it assumes that all women are appressed by all men in exactly the same way, or that there is one experience of dominance experienced by women. It perpetues the idea of law as a unity.
- Law is gendered (postmodern feminists). 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 characterised by their race, class, sexuality, age, physical ability, and other locations of inequality. All of them are overlapping and cumulative in their effect on people’s experience.
Those power relations (based on race, gender, class, mental ability, etc.) cause some characteristics that are seen as normal and others as deviant. People simultaneously experience both oppression and privilege because the system of power ac on all socialstructural levels. Reality is much more complex and we have to take more factors.
They consider the law and CJS as processes which will work in a variety of ways. There’s no presumption that whatever it does exploits women and serves men. Law as a technology of gender: the law is producing certain gender subjects, it fixes gender identities, rather than the mere application of law to previously gendered subjects. It reinforce the stereotypes.
Race/gender perspective assumes that race and gender relations structure criminal law and justice system in important ways. Criminological studies: - Race, gender and class have been “autonomously” applied to the study of crime - 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.