Differential Treatment Of Women: Crime Edition

Read this article on Differential Treatment Of Women: Crime Edition by Indrayani Apte and Krupa Nishar here at Legal Bites.

Introduction

Crime is predominantly considered to be a male phenomenon. However, in the last few decades, female criminality is being witnessed all over the world. The conventional role of a woman was considered to be that of a conserver of social norms, morality, and family cohesiveness. With the changing circumstances, women have stepped out of these traditionally marked boundaries. They are striving to build an identity of their own along with looking after their families. However, one can notice the involvement of women in criminality in the social, economic, and political spheres.

This paradigm shift in the role of women in society has witnessed an increase in female criminality. Female offenders can usually be differentiated from male offenders based on the types of crime usually committed, the modus operandi, conviction rate, treatment given by the criminal justice system, sentencing, societal acceptance after release, etc. The large credence among the law enforcement agencies and the justice system regarding a criminal generally being a male, reflects through the way female offenders are dealt with.

Females, specifically female offenders, are subject to a distinct treatment by the police during the investigation, by the judiciary during trials and by the correctional facilities during the servitude of the sentence.

Suspicion on women

The widely shared prejudice of a woman being the caregiver and nurturer of the family has resulted in lower levels of suspicion on women when it comes to deviant behaviour. The increasing involvement of women in white-collar crimes and organized crimes like drug trafficking can be considered as a consequence of this bias. It can be further elucidated with the help of the Power Control theory.

John Hagan formulated the Power Control theory. It seeks to understand the power relations within a family through patriarchy. Hagan et al. (1987) widened the scope of the theory and highlighted that the power dynamics at work settings translate to power dynamics within a family. Simply put, the provider of the family is entitled to more power. In highly patriarchal families, daughters are more strongly regulated.

This explains the large gap between the delinquency rates of boys and girls. The theory advocates that boys undergo less supervision and they are not refrained from risk-taking behaviour. The theory can be one of the ways to explain the low suspicion on females in the case of an unknown criminal. The power dynamics are ingrained within people to such an extent that the possibility of a female engaging in delinquent behaviour is largely overlooked.

Inherent lenity to women by the judiciary

Women being prone to a particular way of being treated is not limited to the aspect of suspicion. The reception of female criminality by the judicial system is also distinctive when compared to that of male criminality.

The chivalry theory refers to the criminal justice system’s greater leniency or chivalry toward female offenders. Adult men and women are almost equally likely to be arrested or convicted, however, male criminals have a higher chance of being imprisoned or jailed. On the other hand, female criminals have a lower probability of the same.

Several factors like pregnancy, greater likelihood of remorse, responsibilities of children and family, a conception that women are less threatening and more compliant therefore can be rehabilitated come into play that account for these differences. According to the selectivity hypothesis of chivalry theory given by Farnsworth and Teske, women are prone to be treated differently by the criminal justice system as they cannot withstand any severe punishment.

Empirical research also supports the claim that the gender of the offender influences decision-making of the court. Women offenders are, by and large, more likely to be released before trials, given a way out of punishment/ sentencing guidelines, less likely to be imprisoned, and more likely to be given milder and lesser sentences, if incarcerated, when compared to their male counterparts (Albonetti, 1998, Engen et al., 2003, Jeffries et al., 2003, Kruttschnitt, 1984, Martin and Stimpson, 1997/1998, Nagel and Johnson, 1994).

In the opinion of the Supreme Court of India, although gender is not considered as an influential factor while giving a verdict in many countries, in the Indian judiciary, it is a pertinent factor while sentencing a female criminal.

The plight of women in Indian prisons

The chivalry theory, in a sense, says that female offenders have an easy way out of the repercussions of a crime committed by them. Upon conviction, owing to the natural differences between females and males, a female is entitled to some special provisions and facilities. In the Model Prison Manual, 2016, the chapter which focuses on female inmates revolves around an array of topics ranging from classification and separation, diet, healthcare, sanitation, and hygiene to education, inspections, mental health care, vocational training, etc.

Even so, one can witness a colossal amount of gap between the things on paper and in reality.

Prison cells

1. Separate prisons for women– The Prison Manual suggests setting up a separate prison for women offenders in every state. Out of about 1300 prisons in the country, there are only 31 women’s jails in 15 states and union territories. Rajasthan (7) has the highest number of women jails. It is followed by Tamil Nadu (5), Kerala (3), Andhra Pradesh, Bihar, Gujarat, and Delhi (2 each) whereas, Karnataka, Maharashtra, Mizoram, Odisha, Punjab, Telangana, Uttar Pradesh, and West Bengal have one women jail each.
2. Occupancy rate– It is calculated by dividing the inmate population by the total capacity of the prison. According to the Prison Statistics, 2019 published by the National Crime Records Bureau, at the national level, the occupancy rate of women jails is 56.09%. West Bengal (142.04%) has the highest occupancy which is followed by Maharashtra (138.55%) and Bihar (112.5%). This clearly indicates the dire need for more female prisons in order to facilitate correction and rehabilitation.

State of the prison

1. Sanitation and hygiene- Most jails do not meet the standards set by the Prison Manual when it comes to facilities regarding sanitation and hygiene. As mentioned in the Prison Manual, every 10 prisoners should share one toilet and one bathing cubicle, but its implementation can rarely be seen. In the year 2018, 81 women inmates of Byculla jail (Maharashtra) were hospitalized as they suffered from food poisoning due to the poor hygienic conditions in the prison.
   The outbreak of Coronavirus has made this situation even worse. Overcrowding along with an unhygienic environment in prions have had fatal consequences for the inmates.
2. Health- Article 21 of the Indian Constitution guarantees the right to life and personal liberty. Here, life implies life with human dignity and not mere survival. This right also covers the right to health which includes providing good quality healthcare. Most of the prisons are not well equipped with necessary treatments and medical staff, especially gynaecologists. Mental health issues are often given the least importance and inmates suffering from mental disorders are confined to prisons because of scarce medical resources and facilities.
   Indian prisons are badly hit during the pandemic as there is inadequate medical staff to tackle such situations. The National Human Rights Commission (NHRC) set up an 11-member committee to help the prison authorities to deal with this menace.
3. Violence- Incidents of physical and sexual violence by the prison authority and inmates have come to notice throughout the country. Soni Sori, a tribal rights activist from Dantewada (Chhattisgarh), was arrested for working with Maoists and was given electric shocks to extract a confession. In the year 2017, Manjula Shetye, who was given a life term, was allegedly beaten to death by the prison staff including the jailor in Byculla jail.

Staff for female inmates

Lack of female prison staff- As of December 31, 2019, there were 26,812 vacancies in the prison staff across India. In 2015, the permitted number of jail staff was 5,064 for the state of Maharashtra. However, only 3,976 people were employed out of which 713 were women. When there is insufficient female staff to manage women prisons, the male staff is assigned to superintend female inmates. As a result, the authority is seen as unapproachable and the essential gender-specific services are considered inaccessible.

Female inmates and children

According to the Prison Manual, if there is no other person who can look after the children who are below the age of six, they are granted permission to stay with their mothers in prison. As per a 2009 BPR&D report, many prisons lack resources that are necessary for the biological, social, and psychological growth of the child.

Female inmates and the society

Reintegration in society- Offenders, especially females, face severe social stigma while reintegrating into society after their release. Educational facilities and vocational training are two major things that could aid the person to become a law-abiding citizen. However, according to the NCRB Prison Statistics, 2019, only 1.2% of the total expenditure on prison inmates has been done on educational and vocational provisions.

Expenditure on vocational/ educational training of inmates was reported by 21 states/UTs in the financial year 2019-2020. Rajasthan gave an account of the highest expenditure (Rs. 10.10 crores) followed by Chhattisgarh (Rs. 5.43 crores) and Karnataka (Rs. 3.52 crores).

Conclusion

On the whole, to study, understand and curb female criminality, it is necessary to go beyond the stereotypical beliefs regarding what a woman is supposed to do and can do. In other words, it is a prerequisite to broaden one’s vision and adhere to a non-judgmental approach. In addition to this, the law enforcement agencies along with the judiciary should make conscious efforts to implement the recommendations of the prison manual. The execution, if done in its true spirit, would be instrumental in the correction, rehabilitation, and reintegration of offenders in society.

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Author- Indrayani Apte
Pursuing Masters in Criminology with Specialization in Forensic Psychology
National Forensic Sciences University, Gandhinagar, Gujarat.

Co-author- Krupa Nishar
PhD (Pursuing Forensic Psychology), M.Sc. Forensic Psychology
Assistant Professor at National Forensic Sciences University

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References

1. Franklin, C. A., & Fearn, N. E. (2008). Gender, race, and formal court decision-making outcomes: Chivalry/paternalism, conflict theory or gender conflict? Journal of Criminal Justice, 36(3), 279–290. Retrieved from here
2. Islam, M. J. (2014, December). Theories of Female Criminality: A criminological analysis. Research Gate. Retrieved from here
3. Malhotra, S. (2019, June 5). Analysis of Female Offending in India. The Criminal Law Blog. Retrieved from here
4. NCRB. (2019). Prison Statistics India. Retrieved https://ncrb.gov.in/en/prison-statistics-india
5. Prison Manual 2016. (2016). Ministry of Home Affairs. Retrieved from here
6. Whiteley, K. M. (2014). Power Control Theory. Wiley Online Library. Retrieved from here

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