A gender-neutral approach within a male-oriented criminal justice system will not address the needs of women in prison, argues Anita de Klerk

From its inception, the criminal justice system in the UK has had the male deviant and offender at the heart of its thinking and delivery. The underpinning ethos of legislation is that of equality; a level playing field where we are all equal before the law.

However, when you consider the reality of the experience of women in prison, glaring injustices start to appear. The argument posited here is not that the over 13,500 women who have found themselves on the wrong side of the law weren’t in need of punishment, but rather that the system itself is discriminatory and insufficient to deal with the already poor and marginalised women of British society.

It is a fact that women are far more marginalised in society than men. From unequal pay structures, to the role of women as traditional carers and primary child-rearers, to their reliance on welfare benefits due to relative economic inequality and poverty – women’s oppression is real. In fact, one in five women in the UK are dependent on the state for child and tax credits, double that of men. This sexism is not alien to the criminal justice system and influences the punishment, sentencing and imprisonment of the socially-constructed ‘mad not bad’ criminal woman who defies conformity and is no benefit to society.

‘Gender-neutral’ treatment

Under the Equality Act 2010, it became the duty of the state, its agents and the market to promote gender equality and actively work towards the elimination of unlawful discrimination between men and women, offering a ‘gender-neutral’ approach.

Under Chris Grayling’s new Transforming Rehabilitation Programme, the amended Offender Rehabilitation Bill requires that the Secretary of State ensure that arrangements for supervision and rehabilitation services comply with the equality duty in relation to female offenders.

Although this gender-neutral approach is progress from the archaic notion that women offenders need harsher punishments because they disgrace the female population of home-makers, it does not address the issues of the women who face the criminal justice system in the UK and does not go far enough in understanding the differing gendered pathways to prison experienced between men and women.

The experience of women in prison

Of the overall prison population, 9% are women, and 81% of whom had committed non-violent theft related offences, more than twice that of the male prison population. Over half of women in prison have been victims of domestic abuse and a third have suffered sexual abuse. 28% of women in prison are serving less than 12-month sentences compared to 12% of men, and over a quarter of female offenders in prison are first-time offenders, again compared to 12% of the male prison population. 40% of women who enter prison are mothers and one-fifth of the total female prison population are single parents.

According to a Home Office study in 2009, 85% of mothers in prison had never experienced a prolonged separation from their children and found that imprisoning mothers had a significantly damaging impact on their children, costing over £17 million over a 10-year period. Due to the number of women’s prisons, the average distance between a woman’s prison and home is 60 miles, with some women experiencing distances of over 100 miles, presenting difficulties for the women to maintain contact with their children.

The female offender

According to the British Crime Survey in England and Wales 2012/2013, the UK saw a 4% increase in shoplifting, up by over 11,000. Yet the overall crime rate had dropped by 10%. A gender-based crime analysis exposed that the increase in shoplifting was due to an increase in first-time female offenders who were stealing food, and who were suffering the impacts of the £15 billion in cuts already made to the welfare system, three-quarters of which is taken from women’s budgets.

Within current criminal justice policy debates women, crime and how to deal with the female offender, the focus still rests between both the ‘chivalrous hypothesis’ (that argues that women are treated more leniently as a function of the male desire to protect the weaker sex) and the ‘evil woman hypothesis’ (that asserts the notion that women are treated more harshly due to gender role expectations). These debates do not address the issue that women do not share the same pathway to prison as their male counterparts and therefore are not equal before the law and should not be judged by it.

A gender-neutral approach does nothing but paper over the cracks of inequality found in the criminal justice system. We need a revolutionary criminal justice system that addresses the needs of the women who find themselves on the wrong side of the law, and not a redesign of the current male-orientated system.