Solicitor Ugur Nedim looks deeper into the report that investigates the claims of gender bias within the Australian criminal law system.
In Australia, men are more than three times more likely to commit crimes than women, but when we compare the sentences of those who commit offences, some have claimed that women “get let off easier” than men when it comes to sentencing.
It has even been suggested that the disparity shows that there is “gender bias” in criminal law and sentencing, with many arguing that it is unfair to treat women more leniently than men. So why does our justice system treat men and women differently and is it justified?
Looking at the issue from a purely statistical perspective, it would certainly appear that women are treated more favourably by the law. For instance, the Australian Bureau of Statistics found that 63.3% of men who were sentenced in higher courts received a penalty of imprisonment, compared to just 46.7% of women.
Women were also seen to receive more lenient prison sentences, with an average term of imprisonment of 42.4 months, compared to 60.3 months for men.
This apparent gender bias extended beyond penalties of imprisonment – one study found that male drink drivers generally received fines which were 9.7% higher than those received by women for the same offence, and received disqualification periods which were 22.2% longer.
In 2010, a study attempted to consolidate data obtained from courts to determine whether:
1. Women were less likely than men to be sent to prison for similar offences
2. Those sent to prison received lighter sentences
3. Magistrates and judges treated offending behaviours and histories differently based on a person’s sex.
The study found that gender had a direct impact on a judicial officer’s decision to send a person to prison – men were 1.73 times more likely to be sent to prison compared to women. The study found that men received slightly harsher prison sentences, which were on average 1.16 months longer than those received by women.
The researchers then considered the impact of factors such as a person’s prior criminal history, their decision to plead guilty, and the number of charges they were facing.
Again, they found that male and female offenders were treated very differently – a male’s criminal history was given more weight compared to that of females – and generally meant that they received a harsher sentence.
However, women who pleaded guilty early were generally more likely to be sent to prison than men who did so, and women who were charged with multiple offences (or counts) were also more likely to be imprisoned than men.
A case of gender bias?
Looking at this data on its own might lead some to conclude that the justice system is inherently biased in favour of women.
Those who argue that women receive favourable treatment in courts ignore the underlying reasons behind what motivates women to commit crimes. Research shows that women who engage in criminal activity do so for vastly different reasons than men.
For instance, a 2003 study by the Australian Institute of Criminology found that women are more likely to be incarcerated for property, fraud and drug-related crimes, while men are more likely to be sent to prison for violent crimes such as assault and murder.
The study also found that women who commit crime are more likely to have experienced drug problems, physical and emotional abuse, and economic hardship when compared to their male counterparts. Researchers also identified five risk factors that increased the likelihood of a woman engaging in criminal activity: parental or familial issues, childhood abuse and neglect, mental illness, a lack of social support and association with other drug users.
In particular, the study found that the severity of a woman’s drug use “is more closely related to their criminality than it is for men, particularly for prostitution and property crime activities.”
While the 2010 study attempted to uncover sentencing disparities, it focused solely on the sentences received by men and women “in higher courts.” In adopting this approach, it has failed to compare the sentences imposed on men and women for the same, or similar offences. It also failed to take into account key subjective features – such as education, drug or alcohol habits, mental and physical health problems, and so on.
Without accounting for these important considerations, it is impossible to accurately compare the treatment of men and women in the judicial system.
As stated, women often experience very different issues to men, and any “decrease” in the sentence may simply reflect these experiences. Indeed, if these matters were taken into account and similar cases were compared against one another, there might be very little difference in sentences.
In the words of Tasmanian Supreme Court Justice Wright, “In a society striving for, and largely achieving, sexual equality, no legitimate distinction can or should be drawn between offenders solely on the basis of gender.”